14
September 7, 2023
Reading time: 1 minutes
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 the 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.
[post_title] => Why Accurate Documentation Matters Before Referral and Surgery [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => why-accurate-documentation-matters-before-referral-and-surgery [to_ping] => [pinged] => [post_modified] => 2026-03-24 12:39:17 [post_modified_gmt] => 2026-03-24 16:39:17 [post_content_filtered] => [post_parent] => 0 [guid] => https://medprodental.com/?p=10296 [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) [1] => WP_Post Object ( [ID] => 10262 [post_author] => 180159417 [post_date] => 2026-02-19 02:56:58 [post_date_gmt] => 2026-02-19 07:56:58 [post_content] =>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.
[post_title] => How to Stay Passionate in Your Dental Career [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => how-to-stay-passionate-in-your-dental-career [to_ping] => [pinged] => [post_modified] => 2026-02-25 08:18:48 [post_modified_gmt] => 2026-02-25 13:18:48 [post_content_filtered] => [post_parent] => 0 [guid] => https://medprodental.com/?p=10262 [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) [2] => WP_Post Object ( [ID] => 10249 [post_author] => 180159417 [post_date] => 2026-02-13 03:15:51 [post_date_gmt] => 2026-02-13 08:15:51 [post_content] =>Dentists often underestimate the importance of malpractice insurance, but this article clears up common misconceptions and explains why coverage is essential for every dental professional. You’ll learn how common myths can put your career at risk. By understanding the facts, you’ll be equipped to make informed decisions that protect your practice and reputation.
Key Concepts
- Common myths about dental malpractice insurance
- Why every dentist needs malpractice coverage
- How misconceptions can lead to malpractice risk
Navigating malpractice insurance can be daunting for dental professionals. Myths and misconceptions can cloud the true value of securing strong, reliable coverage. Many dentists may even question, "Do I need my own malpractice insurance?" In most cases, the answer is a resounding yes.
It’s important to keep in mind that malpractice insurance is not just for dental professionals in high-risk environments. Every dental professional can face potential legal risks. That’s why understanding the facts about malpractice insurance coverage is crucial when developing an effective risk management strategy. This article will debunk common malpractice insurance myths and highlight the benefits of malpractice insurance for dentists.
By separating myths from facts, you can make more informed decisions about your insurance needs. Let's dive into common myths associated with dental malpractice insurance coverage.
What are common dental malpractice insurance myths?
When it comes to malpractice insurance, several misconceptions can influence dentists' perspectives on it. Many dental professionals operate under flawed assumptions about their malpractice coverage needs. These misunderstandings can have serious consequences, leading to increased risk.
Let's explore some of the most prevalent malpractice insurance myths:
- Malpractice insurance is unnecessary as a dentist.
- All policies offer the same coverage and protection.
- General liability insurance adequately covers professional liability.
- I will not be sued if I don't do anything wrong.
Understanding these myths can help dental professionals recognize the importance of comprehensive coverage and make better choices about their malpractice coverage.
Myth #1: Malpractice insurance is unnecessary as a dentist
Some dentists believe that malpractice insurance isn't necessary for their practice. They often think that the chances of getting sued are low or only certain specialists need to secure malpractice coverage. However, this is a malpractice insurance myth.
All dental professionals face the possibility of dental malpractice claims. In fact, the average dentist is sued at least once in their career. Even routine procedures can result in unexpected claims. Without dental malpractice insurance, the career you've worked hard to build is at risk.
Malpractice insurance provides crucial protection against potential malpractice claims or lawsuits. It can cover costs like legal fees and settlements. Therefore, getting malpractice insurance is a simple, proactive step you can take to protect your career.
Myth #2: All policies provide the same coverage
Assuming that all malpractice insurance policies are the same is a risky misconception. Not all policies offer identical benefits or protections. Coverage can vary significantly between providers. That's why choosing the right carrier and the right policy is so important.
It's essential to understand the specific terms of your policy. Different policies might exclude certain procedures or limit coverage. You need a policy that aligns with your practice's needs and a carrier that has the experience and resources to help you avoid claims and defend you in the event of a claim. To better understand the anatomy of a malpractice policy, read this article.
Malpractice insurance isn't one size fits all. Finding a carrier who offers coverage tailored to your career and practice can help you ensure all your bases are covered.
Myth #3: General liability insurance covers professional liability
Some practitioners incorrectly assume that general liability insurance covers professional liability. This misunderstanding could leave major gaps in protection.
General liability insurance commonly addresses general claims related to bodily injury or property damage that occurs at your business. It doesn't generally cover malpractice claims stemming from professional duties. Relying on general liability insurance coverage will not be enough to protect you from the threat of malpractice claims.
Separate malpractice coverage is necessary for professional activities. A dedicated policy ensures protection against legal claims from patient interactions. It's a key element in comprehensive risk management for dental practices.
Myth #4: I will not be sued if I don't do anything wrong
A widespread misconception among dental professionals is the belief that they won’t face dental malpractice lawsuits if they adhere to best practices and provide quality care. This myth can be dangerously misleading.
In the field of dentistry, even the most skilled and diligent practitioners can find themselves facing a malpractice claim for various reasons. Patients may have unrealistic expectations, misinterpret treatment outcomes, or simply be unhappy with their results, regardless of whether the dentist acted correctly or negligently. This disconnect can lead to dissatisfaction and, ultimately, legal action.
Moreover, it is essential to understand that the legal system does not require a showing of wrongdoing to initiate a lawsuit. The very nature of malpractice claims allows for individuals to sue healthcare providers, even when a lack of negligence can be established. Many cases arise from misunderstandings or claims based on emotions rather than actual malpractice.
Ultimately, the belief that good practices alone can shield dentists from litigation is a risky notion. A comprehensive malpractice insurance policy is a vital component of safeguarding your career and reputation against potential legal challenges.
What are the benefits of dental malpractice insurance?
Dental malpractice insurance offers numerous benefits beyond just legal protection. Knowing you're covered allows you to focus on delivering quality care without fear of financial stress.
The benefits of securing malpractice coverage also extend to various professional aspects. Consider the peace of mind that comes with knowing you're safeguarded against potential claims. This assurance can help you maintain your confidence in practice.
Furthermore, malpractice insurance can serve as a valuable resource. Malpractice carriers, like MedPro Group, often provide access to insights from malpractice experts and helpful risk advice. Here are some key benefits you may get from a malpractice policy:
- A claims team dedicated to your defense.
- Coverage for legal defense costs and settlements.
- Access to risk management resources and advice.
- Peace of mind in the face of unexpected claims.
The importance of malpractice insurance grows as claim severity reaches an all-time high. Protecting yourself from potential lawsuits by getting malpractice coverage is a proactive step every dental professional should take. By integrating malpractice insurance into your risk management strategy, you can better protect your career and reputation.
Protect your good name with MedPro Group
Now that we've debunked some of the most common malpractice insurance myths, you can get the coverage you need and feel confident doing so. That's where MedPro Group comes in. We’ve handled over half a million malpractice claims – more than any other carrier. With a 95% dental trial win rate, we have the claims experience to be there for you when it matters most.
Don't wait to protect your good name. Get started today with a free, confidential quote.
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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 the 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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