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Statute of Limitations Impacts Dental Lawsuit: What to Know

Case Study

Marc Leffler, DDS, Esq.
January 16, 2025

Reading time: 9 minutes

a child getting their teeth checked by a dentist.

Background Facts

An 11-year-old boy, J, was a patient of his pediatric dentist, Dr. P, since approximately age 4, as his parents were diligent in seeing to it that their son’s dental health was a priority. J’s secondary tooth eruption pattern emerged somewhat earlier than the usual, and it became evident to Dr. P, through clinical assessment and cephalometric analysis, that J was developing a bimaxillary protrusion. Having performed orthodontics as part of her practice for many years, Dr. P felt confident planning a course of action that would involve the extraction of 4 premolar teeth in conjunction with orthodontic intervention. After discussing the plan with J and his parents, all were in agreement that this approach was appropriate and it should go forward.

Dr. P stayed away from extracting permanent teeth, so she referred J to a local oral and maxillofacial surgeon, Dr. S, with whom she had an ongoing professional relationship for over 3 decades. While Dr. P had become fully digital in terms of recordkeeping, Dr. S had not, instead using paper, handwritten records. State X, in which both practiced, required that dental records be maintained for adult patients for a period of at least 6 years following patient discharge, and Dr. S was fully aware of that provision, but he was unaware of the longer requirement relating to the records of children. Given that, as with many oral surgeons, Dr. S saw a very large number of patients for a limited time period only, and because his physical patient charts took up much space in his office, he employed an outside, appropriately vetted service that would sort through his records on a biannual basis, and remove and shred all records for patients who had not been seen in at least 6 years.

Upon seeing J, Dr. S scheduled and later performed the extraction of all first premolars – with the consent of J’s parents – exactly as directed by Dr. P during a documented telephone conversation and on a written referral card. The extractions and their healing were uneventful, and Dr. P then proceeded to perform the orthodontics that had been planned. J was never fully pleased with the results, and as he headed to college, he became self-conscious about his dental and facial appearance. By this point, J, now nearly 19, was treated by a general dentist, Dr. G, to whom J expressed his cosmetic concerns. The general dentist shared those concerns and openly criticized the prior treatment plan, advising J that his earlier malocclusion had not been limited to his teeth, but also involved a skeletal deformity; therefore, according to Dr. G, J should not have had the orthodontic treatment that he did, instead deferring all treatment for several years until he could have had 2-jaw orthognathic surgery in conjunction with that orthodontics. Dr. G offered to refer J to an oral surgeon who could evaluate for and potentially perform the maxillary and mandibular surgery to correct J’s appearance, but J decided that he did not want to go through with that surgery while in college, although he remained unhappy with his appearance.

Legal Action

After speaking with his parents and transmitting what Dr. G had said, J opted to obtain an attorney to look into whether Dr. P had wrongly determined the extraction-orthodontics treatment plan, which she carried out in conjunction with Dr. S. The attorney requested complete sets of records from Drs. P and S, which would be reviewed by pediatric dentistry, orthodontics, and oral surgery experts retained by the attorney. Dr. P timely complied with the attorney’s request, but Dr. S was unable to do so, and so advised the attorney, as J’s records had been destroyed more than a year prior, in conformity with his usual practice methods.

Based solely upon their reviews of the records, radiographs and models from Dr. P, as well as those from Dr. G, the attorney’s team of experts agreed with Dr. G that J had been misdiagnosed as a dental, rather than skeletal, deformity case from the start, leading to improper treatment, thereby causing the unsatisfactory result. The attorneys, on behalf of J, filed a dental malpractice suit against Drs. P and S, claiming that they had been negligent in their respective treatments. The suit was timely because minors in State X are afforded a longer statute of limitations period than their adult counterparts, and this time period fell within that extension.

Discovery and Case Resolution

Both of the now-defendants notified their professional liability carriers, who assigned attorneys to represent Drs. P and S. In their Answers to the Complaint, both defense attorneys asserted that their clients had met the standard of care and were, therefore, not liable for the result that J had.

In that J’s attorneys had never received copies of Dr. S’s records, their first order of litigation business was to seek a court order from the presiding judge which mandated his providing those records to J’s attorneys. Dr. S’s attorneys admitted to the judge that the records were no longer available due to Dr. S’s process of purging old records from his office, but argued that his treatment was based solely upon the request of Dr. P, who was “quarterbacking” the orthodontic treatment, and that there were no complications which arose from the extractions. J’s attorneys responded that it would be prejudicially unfair of the court to force them into pursuing malpractice litigation against one of the defendants without the benefit of that defendant’s records, adding that the absence of those records was due solely to Dr. S’s failure to know and abide by the statutory requirement that the records of minor children needed to be retained in State X for a longer period of time than for adults. The court asked all counsel to provide legal briefs discussing all of these issues.

In those written arguments, J’s attorneys argued that Dr. S had spoliated (“destroyed”) the records which would have served as crucial evidence, and should therefore be sanctioned by holding him in default – effectively handing a litigation victory to J, as against Dr. S – or, in the alternative, reserving that ultimate decision for trial but at least advising that potential trial jury that its members might draw the strongest of inferences against Dr. S during deliberation. The court held that, in its view, while Dr. S had been negligent in failing to retain J’s records as statutorily required, he had no malicious intent in doing so at the time. Therefore, Dr. S would not be defaulted, but trial jurors would be affirmatively instructed by the court that they may properly infer from Dr. S’s actions that any or all of his conduct had been improper and that they may properly consider that impropriety in their considerations regarding Dr. S’s liability.

Dr. S’s attorneys advised their client of the severe and significant impact that this ruling might have, and that it may well inflame a jury against him to the point that they might even lash out at him through their verdict. Dr. S asked his attorneys to try to seek a settlement prior to trial, which they successfully did. Dr. P believed that she had acted entirely appropriately in her diagnosis and treatment plan, so she refused to settle and opted to go on to trial. (The trial of Dr. P is outside of the boundaries of this case study.) Despite the settlement, which J accepted but still believed was low in monetary value, J decided to file a disciplinary complaint against Dr. S regarding his premature destruction of his dental records. After investigation, the Dental Board found that Dr. S had violated the statute of State X, so it levied a significant fine against Dr. S, placed him on probation for 2 years, and required that he complete continuing dental education on the subject of dental records maintenance.

Takeaways

It goes without saying that dentists are not, and are not expected to be, legal experts regarding the issues which surround their practices. But there are certain principles about which they must maintain awareness, in order to protect the rights of their patients and to safeguard themselves. Among those principles are the maintenance and retention of dental records. While electronic records are relatively easy to keep – as computer hard drives, either internal or external, can be expanded so as to allow preservation compliance – handwritten paper charts can become unwieldy, especially in dental specialty practices in which patient numbers tend to be much greater than in primary dental care offices. It is not the purpose of this case study to suggest what types of recordkeeping dentists should employ, or how they should maintain records, but it is a purpose to point out that the time requirements are blind as to method when it comes to maintenance/retention time.

This case touches on the concept of statute of limitations, which in this context is the amount of time following a procedure or the carrying out of a treatment plan that is given to patients to begin a malpractice suit against treating dentists and dental specialists. Just as the time periods for maintenance and retention of dental records are State-specific, so are statutes of limitations, so it would do practitioners well to familiarize themselves with these requirements and allowances for each State (or District) in which they practice, in order to be sure that they are fully in compliance. If they are in doubt, they should contact their malpractice carrier or a personal attorney, but the failure to know and comply with the law is not an excuse, as Dr. S learned here.

The role of Dr. G’s voiced criticisms to J about his prior treatment should not go unaddressed. It would be difficult to argue that, without his denunciations of the care provided by Drs. P and S, the actions taken against those practitioners would have gone forward. We sometimes refer to such behavior as “jousting”, or the throwing under the bus of dentists by subsequent-treating fellow dentists. It is, unfortunately, common enough that we can reasonably conclude that a fair percentage of dental malpractice cases are initiated as a direct result of that type of critical commentary; why dentists so frequently engage as such is unknown, but it has seemingly become a component of the culture of dentistry. While the tenets of ethical dental practice do obligate dentists to point out to patients what they believe to be problematic conditions in and around their mouths, communication can be transmitted in less harsh ways, at least in part due to the immutable concept that the later dentist was not standing in the prior dentist’s shoes when certain decisions were made and treatments undertaken.

Finally, this case study demonstrates that lawsuits are only one method that patients may use when they are dissatisfied with dental treatment. Patients have the option – either instead of a suit, or in conjunction with a suit, or following the conclusion of a suit – to file complaints with a Dental Board. These Boards, as affiliates of licensing authorities, have powers that can extend from as little as letters of reprimand to revocation of licenses, so Board complaints must be taken very seriously and should, therefore, involve attorneys to represent the interests of the dentist under review; many malpractice policies provide for such legal representation. And even with a malpractice suit settlement agreement in place that provides for confidentiality, it is generally difficult, if not impossible, to prevent a patient from going forward and filing a complaint with a government authority.

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.

Dentists will learn how sedation missteps can lead to a malpractice claim and Dental Board action. This case highlights why understanding state sedation requirements, assessing patient risk, and preparing for emergencies are essential to managing malpractice risk.

Key concepts

Dentist sued after unpermitted sedation led to a medical emergency
Dental Board action tied to state sedation permit requirements
Why patient risk factors matter before providing sedation

Underlying facts

K was a 47-year-old man, who has been an asthmatic for all of his life. His medication regimen has changed over the years — to include, at times, corticosteroids, biologics, and rescue inhalers. At the time of his subject series of visits with Dr. F, K's long-time general dentist, he reported taking daily steroids and an occasional need for the inhaler, with asthmatic flare-ups not uncommon. K had skipped seeing any dentist for some time, so Dr. F found 3 carious lesions in the left posterior for which endodontic care was indicated, and he advised his patient of exactly that.

For some reason, K explained, he had developed a fear of dentistry, the reason he had stayed away, and the prospect of root canal therapy, in 3 teeth, was daunting. Dr. F told his patient that, while he does not often do so, he would prescribe an oral sedative to be taken shortly before each of the 3 procedures, as an adjunct to nitrous oxide/oxygen ("laughing gas") given through a nasal hood. K agreed to try that approach, and filled the prescription given to him.

Just before being driven to the dental office on a relatively humid day by his young adult daughter, K took 2 of the tablets — rather than one, as prescribed — and arrived in a surprisingly relaxed state. When Dr. F peeked into the waiting room, he asked "did you take the medication?" "Yes I did." K was soon seated by Dr. F's assistant, who placed the hood and dialed in N2O/O2 at 5 liters per minute and a 70%/30% ratio, all of which was Dr. F's custom.

When Dr. F entered the treatment room, he briefly made small talk with K before delivering a mandibular block and infiltration. K winced and became visibly upset, which led to his beginning to show difficulty in air exchange. Dr. F asked the assistant for a pulse oximeter, but it could not be located. Dr. F switched the gas flow to 100% oxygen, but he had no means of delivering it with positive pressure. K deteriorated, with his lips becoming bluish, and his respiratory efforts becoming more and more futile. The receptionist heard the commotion, came to see what was happening, and called 911; EMS came 17 minutes later, by which time K was breathing poorly and minimally conscious. With telephone instructions from an emergency department physician, a paramedic started an IV line and injected a muscle relaxant while an EMT squeezed oxygen through an Ambu bag, slowly raising the O2 saturation from 73% to 92%.

K was transported to the hospital, where he was admitted for 4 days, undergoing a complete pulmonology work-up and medication regimen modification. K was left with large ambulance and hospital bills, for which no health insurance was in place, owing to his being new to his current job, which he could not attend for another 2 weeks, unpaid.

Legal steps taken

Intimidated by the amount of money he owed, K sought legal advice, and was counseled that suing Dr. F might cover his expenses and lost earnings, as well as money to compensate him for his physical and emotional injuries. The newly retained attorney obtained copies of the records from Dr. F, the ambulance, and the hospital, and sent them to dental and internal medicine experts for their input. The dental expert knew that dentists in that State were required to obtain a permit for providing sedation at any level, including orally, with predicates to obtaining the permit being (1) an office assessment by 2 dentists from the State Dental Board, to assure that resuscitation equipment and drugs were available and functional, as well as (2) basic life support certification for the dentist and at least 1 present staff member (or ACLS for the dentist for deeper levels of sedation), and (3) doctoral or post-doctoral training in sedation techniques. Dr. F was not aware of any of these requirements, so, as the dental expert found on publicly available platforms, Dr. F had never applied for a permit; in fact, neither he nor any staff member was current with BLS certification.

In addition to filing a dental malpractice lawsuit against Dr. F, K, with his lawyer's help, filed a Dental Board complaint. In his response to the complaint, one of the arguments posed by the attorneys provided to Dr. F by his malpractice insurer was that Dr. F had not intended to do more than simply "take the edge off,” and it was K's own action, by taking a higher medication dose than prescribed, that led to a deeper level of sedation and the apparent laryngospasm that flowed from that. The Board was unmoved: the statute set out strict requirements, for any level of sedation, with the dose provided by Dr. F falling into that category; Dr. F had violated that statute. The Board levied monetary sanctions and a stayed 6-month suspension from practice.

The Board's findings and actions, which would likely make their way to a trial jury in that jurisdiction, made the malpractice defense a steep uphill battle. A settlement followed, compensating K for both economic (medical costs, lost income) and non-economic ("pain and suffering") damages.

Takeaways

The old adage that "ignorance of the law is no excuse" clearly applies here. While dentists are not expected to have the degree of understanding of laws that lawyers do, they are expected to know and abide by the parameters of their State's Dental Practice Act; there is simply no getting around that. With this is mind, had the case proceeded to trial, it is foreseeable to believe that a legal principle known as negligence per se would have come into play: in basic terms, when a person violates a statute which is intended to protect the public safety, and that violation causes an injury, there is essentially a presumption of negligence/malpractice. Here, Dr. F's failure to obtain the needed permit is quite readily argued to have caused K's injuries, based upon the facts that his training was inadequate and his resuscitative inventory was lacking, leading directly to the inability to protect K's safety. Legally, negligence per se provides what amounts to a short cut for plaintiffs, yet one which is avoidable.

Readers might wonder whether K's own improper action, namely taking twice the prescribed dose, could have alleviated Dr. F's liability, or at least a portion of it. The answer is maybe. When a settlement is made, as it was here, all of the potential legal arguments go away. But if the litigation had proceeded, and depending upon the State and locality involved, a jury might have been able to consider K's impropriety and reduce, or even possibly eliminate, Dr. F's liability. Taking that approach at trial is viewed by some lawyers as risky because jurors might see it as trying to blame the victim; but that does not mean that such a tactic does not ever occur, because it most certainly does. It ends up as a judgment call on trial strategy, left for lawyers to discuss with their clients, with a typical risk-benefit analysis playing a major role.

An issue underlying the facts in this case is the existing medical condition of K, as of the time of the procedure. He was a known, disclosed asthmatic, whose various medication regimens signaled a significant level of disease. Most practitioners would likely agree that such patients pose a higher risk profile when it comes to sedation, to any degree, such that a host of factors need to be considered beyond the "usual.” In terms of strict ASA classification, K would be viewed — based solely on his asthma condition — as a Class II (if the asthma was judged to be well controlled with management of it on an as-needed basis) or Class III (if the asthma was viewed as not being well controlled, with frequent episodes and constant treatment required) patient. Of course, there is subjectivity involved with assigning patients into these groups, but objective assessments ought to be used to guide the conclusion.

Finally, we address a defense that Dr. F raised with the Board, namely the level of sedation that was intended for K, rather than the one achieved. In some States, that difference might be determinative, but in the State of Dr. F's practice, that difference was irrelevant. Either way, it is a universal given that dose X of drug Y will necessarily produce different sedative results in different patients, even if nominally but potentially largely so; dentists are prudent to realize that sedative end points are unpredictable, that patients might become more deeply sedated than intended, that patients might have side effects generally associated with the deeper level, and that the dentist must be appropriately trained and otherwise prepared to handle even low likelihood, but severe, risk manifestations. There is often little room for error when a patient's state of consciousness is altered.

Summary of takeaways

Dentists are expected to know and follow their state’s sedation requirements.
Patient-specific risk factors can increase sedation-related liability.
Sedation outcomes can be unpredictable, so emergency readiness is essential.

In this real-life case study, dentists will learn how a swallowed crown can quickly become a patient safety event and lead to a malpractice claim. See why prevention, timely follow-up, and patient communication are essential aspects of reducing risk.

Key Concepts

Swallowed crown led to malpractice lawsuit
Preventive steps to reduce swallow or aspiration risk
Compassionate communication and risk management

Background facts

E, a 64-year-old man who was markedly obese with type II diabetes and atrial fibrillation, presented for the insertion visit of a PFM crown on his upper right second molar, tooth #2. Getting to that point had been far from easy for both E and Dr. M, owing to limited opening ability and an excess of facial soft tissue. Preparation for the crown and impressioning had each taken a full visit for the very same reasons. Suffice it to say, as Dr. M later did, there was very little room to work in E's mouth. No local anesthesia was given for this visit; as Dr. M placed the crown for what would be the final try-in, his finger incidentally made contact with E's soft palate, causing him to gag and unexpectedly move forcefully, which then caused the crown to slip out of Dr. M's wet gloved hand, and out of sight. Dr. M, an experienced practitioner nearing the end of his career, who liked to work "solo", called an assistant into the room to suction the oropharynx of the supine patient, with the hope of finding the crown tucked into a tissue fold. The crown was not found.

Dr. M explained that he would need to take another impression because the crown had "slipped behind the mouth"; he did just that over the next hour. As E was being dismissed, Dr. M said that the crown will work its way down the intestines, to be voided in the stool: E should inspect his stool over the following few days, to the extent reasonable, but he shouldn't overly worry about it. E left the office, expecting to return in 10 days for the new crown to be inserted.

On the fourth day after this visit, E noticed that his stool was blood-tinged, so he called Dr. M to learn whether that might be related to the dropped crown, but Dr. M did not think so. He did, though, advise E to speak with his primary care physician if things worsened or even remained the same. The stool got redder toward the end of the week, so, that Sunday, he appeared at an urgent care center, where, upon hearing about the dental crown incident, the physician ordered an abdominal series of radiographs, which located the crown, appearing to be stuck in place at a sharp bend in E's colon. Arrangements were made for E to have a colonoscopy the following morning at a local hospital, where E was admitted for the night.

Under deep sedation, a gastroenterologist removed the crown from the colon by using a grabbing instrument. When the crown was examined after removal, the gastroenterologist reasoned that the metal edge of the crown that projected below the porcelain portion — the margin — had likely dug its way just a small amount into a fold in the wall of the colon, preventing it from moving beyond that point to be expelled. Because of E's underlying medical conditions, he was kept in the hospital until the next day, at which time he was discharged without any problems or complications.

Legal action

Although E was willing to let the situation end without any further action, his wife was particularly annoyed about the hospital, anesthesiology, and gastroenterology fees, which were not covered by E's high-deductible medical insurance policy, as well as what she viewed as Dr. M's lack of caring, as demonstrated by his having never followed up with E about what had occurred.

An attorney was brought on board to sue Dr. M for dental malpractice, so that the out-of-pocket costs and a sum for pain and suffering could be recovered. The attorney's first step was to contact Dr. M's malpractice carrier, specifically its regional claims consultant. When all records were obtained and reviewed, the claims consultant explained to Dr. M that a supportive defense expert was unable to be located, even by a local defense attorney, so that a liability defense could not be mounted, other than by way of Dr. M acting as his own liability expert.

Dr. M realized that this was far from an ideal approach, so he agreed to attempts to settle the case, which was accomplished for a relatively modest amount of money.

Takeaways

Under the best of circumstances, maintaining a grip on small objects placed in the mouth, using wet gloves, is fraught with the risk of losing control of the object — here a crown. When treatment is performed in the back of the mouth, that risk is magnified, and when the patient's anatomy makes the working space smaller than usual, the risk further increases. Adding to that, the gravitational considerations of a supine (rather than upright) patient maximize the likelihood of a dropped object being swallowed or aspirated. Each of these "weak points" can generally be mitigated: oropharyngeal packs are placed to try to physically block the backward and downward path, particularly when rubber dam cannot be used; working with a watchful, suctioning chairside assistant provides extra hands, extra eyes and extra protective devices; and seating a patient in as upright a position as possible can mean the difference between a dropped object falling harmlessly into the floor of mouth where it is easily retrievable, and a swallow/aspiration event.

Any and every time that an object is placed into the mouth, or one becomes free-floating in the mouth, and cannot be accounted for, it should be assumed to have been swallowed or aspirated unless proven otherwise, generally by radiographic evidence either way. As a general rule, the sooner the patient is able to be placed into the care of medical colleagues for locating and treating, the less the ramifications will be. That does not necessarily mean that dental procedures must always be stopped in their tracks, but it does mean that, as soon as it is safe for the patient to move on for definitive care, the better off they will usually be. Because physicians are often less than fully aware of dental materials and instruments, it is helpful to them if a photo example, or actual example, is provided to the patient to pass on to their physicians, so that they know exactly what they are looking to locate.

Two considerations which quite often lead patients to seek legal advice are unexpected and unreimbursed costs, and a perception that their dentist did not truly care about them, particularly when things did not go as planned. The former is unpredictable, and it ended up here as one of the main drivers toward legal action, but the latter can almost always be avoided. Prompt and repeated follow-up communication, by the dentist, rather than an office staff member, with patients; and demonstrating a genuine interest in patients, as people and not only "receivers of dentistry"; can go a long way toward heading off involvement of lawyers.

Not all patients and not all similar procedures are the same, whether because of underlying medical issues, patient anatomy, patient size, patient attitudes, or limited mobility. So, a one-size-fits-all approach is rarely, if ever, a helpful treatment mindset to adopt.

Finally, we address the circumstance here, where no liability expert could be found to help to defend Dr. M. While not very common in the defense of dental malpractice claims, it does occasionally pop up. In most, if not all, jurisdictions, dentists are legally permitted to serve as their own experts. But in the eyes of jurors, that is often a difficult sell. In this situation, as well as all other litigation-related issues, dentists are counseled by their defense attorneys, whether the news is easy to hear, or not.

Summary of takeaways:

Take an objective, measured approach to patient communication
Avoid criticizing prior care without full context
Maintain thorough documentation to support care decisions

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Sometimes criticizing a patient’s prior dental work can expose dentists to malpractice risk. Understand where the line lies between appropriate patient education and “jousting,” and how communication choices, documentation, and professionalism can influence legal outcomes.

Key Concepts

How criticizing prior work can increase malpractice risk
Keep communication objective and professional
The importance of strong documentation during a claim

Background facts

Dr. Y was a general, restorative dentist who recently moved into a suburban community—with great public schools—to both live and work. The area's dentists were, generally speaking, busy but not bursting at the seams, so Dr. Y realized that it would not be easy for him to establish his practice with so much competition. His approach would be to sign on to as many dental insurance panels as he could, hoping to use that platform as a foundation upon which to build a patient base. It took a couple of years, but his practice grew.

It was not that Dr. Y would "manufacture" dentistry to perform upon new patients where that need did not exist, but he was what other dentists in the neighborhood described behind the scenes as "hyper-critical" in his evaluations of the dentistry that had been done by prior dentists. R had been a long-term resident of the area, having never had dental insurance until her recent job change. She had completed implant-supported bridgework on both arches some 6-8 months ago, which had cost her a significant amount of money, and she was in the midst of a very slow process of getting used to functioning with the prostheses. With her new employer now providing her with dental insurance—a plan which Dr. Y, but not her prior dentist, Dr. K, accepted—she presented to Dr. Y as a new patient.

At the initial visit, Dr. Y took a full mouth series of radiographs and did a thorough clinical examination. When R mentioned that she "just didn't feel comfortable" with the new dentistry in her mouth, Dr. Y told her that he knew why: the abutments and pontics were overbuilt, with inadequate embrasure spaces; some of the margins were open, although slightly; and the overall dental anatomy did not allow for self-cleansing, making it "a set-up for periodontal disease.” Dr. Y suggested that all of the prosthetics be removed and replaced. Even with R's dental insurance contributing a fair amount to the cost of the proposed treatment, she would still have to pay a large amount of money out of pocket and endure a months-long process. R was very upset, to say the least, focusing that displeasure on Dr. K; she had always known that a replacement of Dr. K's work would likely be required down the road, but she did not expect that so soon after it was inserted.

Dr. Y removed the existing bridges, replaced the implant abutments, re-prepared the natural teeth, impressioned and temporized the mouth, and ultimately inserted new upper and lower cases. R was no happier with the new work, but Dr. Y told her that there was only so much he could do with the underlying foundation that Dr. K had "inadequately established,” so R would simply have to adjust. She never fully did.

Legal action

With R continually complaining to family members and friends about how unhappy she was, not only dentally, but also because of the money she had paid both Dr. K and Dr. Y, while exhausting her annual dental insurance benefits so early in the calendar year, she was encouraged to seek out an attorney who might have some solutions for her. R's newly retained attorney obtained the dental records of Drs. K and Y, as well as a narrative from Dr. Y, in which he was quite critical of Dr. K's work product, which was directly responsible for the need to exchange it and for the inability to create a more ideal replacement (due to the underlying damage it/he had caused).

When Dr. K reported the contact from R's attorney to his malpractice carrier, he was provided with defense counsel, who was able to obtain the records and report from Dr. Y. Dr. K was in literal disbelief at what he saw in writing, but he knew that it would be a difficult task, from a dental standpoint, to demonstrate the quality of his work, with it having been removed and replaced. At the same time, he felt bad for R, his patient of many years, whom he believed had been sold an inaccurate story, for the sake of Dr. Y's financial gain.

With Dr. K's counsel functioning as an intermediary at Dr. K's request, an offer was made to refund to R all that she had paid to Dr. K, in order to stave off the prospect of a lawsuit. R, through her attorney, accepted that offer, with the money changing hands once R executed a Release of Liability document.

Takeaways

As healthcare professionals, dentists are ethically obligated to advise patients regarding the conditions of their mouths, including the status of existing dental work. But without having ever stood in the shoes of a prior-treating dentist, and not knowing what challenges and limitations might have been placed upon them, or how the patient took care of themselves dentally after that treatment, blanket criticisms that do not take any of these potential factors into account are known in the malpractice world as "jousting" —not the medieval game involving horses and lances, but with similar effect. Part of professionalism is being able to candidly communicate with patients without denouncing the work of others, absent full knowledge of all contributing factors. Here, while Dr. Y acted appropriately by advising R of his findings—presuming that he did, in fact, find deficiencies and problems—he stepped into the jousting arena by doing so in a manner that made certain presumptions of blameworthy wrongdoing. It is a fine line to walk, and one to be figured out by all practitioners. Jousting, as compared with notifying, is a significant driver of dental malpractice claims; why that practice is as common as it is, perhaps more so than in other professions, is a speculative exercise for consideration elsewhere.

Dr. K's decision to try to resolve R's complaints by offering, and ultimately providing, a refund was a personal one, considering all of the issues involved with defending a protracted dental malpractice case, as compared with taking all of that off of his plate quickly. Refunds are far from uncommon in dental practice; when provided, dentists are wise to protect themselves legally by obtaining a Release of Liability (ROL), signed by the patient, in exchange for the returned money. In essence, a ROL in this context states that the patient is willing to accept a monetary benefit, while relinquishing the right to later sue the dentist regarding the course of conduct that led to that refund. As with all legal documents, ROLs are best prepared and overseen by attorneys, who can assure that the process is carried out in the most appropriate manner, so as to afford the best level of protection. We do note, however, that no ROL will prevent a patient from subsequently making a complaint to a state Dental Board, as the right to report to government entities cannot be given up through a civil process, such as a refund or a settlement. For better or worse, that is the way it is.

Dr. Y's preparation of a narrative for an attorney is an everyday occurrence. In many jurisdictions, attorneys for patient-plaintiffs are required to obtain some sort of statement, whether written or otherwise, from a dentist, in which that dentist states, in terms of varying specificity, that the treating dentist who is being considered as a potential defendant violated the standard of care, thereby leading to damage to the patient. Such statements are opinions, and opinions vary much of the time, but that is how the system works. To add to the difficulties in defending cases like this, particularly involving restorative dentistry, the work that is later claimed to have been deficient will, by definition, have been removed and replaced, so there can be no after-the-fact reviewing of the criticized work by the defendant and/or his/her defense expert. That serves as yet another reason that documentation (including post-placement radiographs, when appropriate) is so important, as it might well be the only "living" evidence of steps taken and rationales for doing so. Time-consuming as it is, documentation is not something to shortcut: that includes dentists writing their own chart entries, rather than having an assistant or other staff member do it for them.

Summary of takeaways:

Criticizing prior work without full context can increase malpractice risk.
Keep patient communication objective and avoid assigning blame.
Thorough documentation is critical for defending care decisions.

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Key concepts

Dentist sued after unpermitted sedation led to a medical emergency
Dental Board action tied to state sedation permit requirements
Why patient risk factors matter before providing sedation

Underlying facts

Legal steps taken

Takeaways

Summary of takeaways

Dentists are expected to know and follow their state’s sedation requirements.
Patient-specific risk factors can increase sedation-related liability.
Sedation outcomes can be unpredictable, so emergency readiness is essential.

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Dentist’s Criticism of Prior Work Leads to Malpractice Claim

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