How a Dental Office’s Answering Machine Led to a Lawsuit

Background Facts

A woman in her mid-20s had been having discomfort for a number of months in her lower right first molar, which was especially pronounced when she was chewing. She recalled that the pain had begun shortly after she bit down on an unpopped popcorn kernel. Thinking that she had just irritated her gums, she increased her oral hygiene regimen but did not contact her dentist. The discomfort waxed and waned, so she figured that this would just take some time to get through.

In the week before finally seeing her dentist, she began to notice movement of a piece of tooth #30, combined with an uptick in the level of pain. She made an appointment to see her general dentist (Dr. A). Dr. A listened to the patient’s history and clinically examined the mouth, noting a clear mesio-distal fracture of the tooth. A periapical radiograph demonstrated a radiolucent lesion extending from the furcation to the apex, leading to the diagnosis of an infected, fractured tooth. Extraction was recommended and the patient agreed. Following a straightforward extraction with removal of a significant amount of granulation-like tissue, the patient was discharged home with usual post-extraction instructions, which included that the patient should contact the office with any questions or concerns.

On the second post-op day, the patient called the office and advised the receptionist who answered the phone that she woke up with red, warm facial swelling adjacent to the extraction site which was tender to the touch. The receptionist advised the patient that swelling after an extraction is nothing to be concerned about because it often happens and will resolve in a few days; Dr. A was not told of the conversation and the receptionist entered a chart note saying “spoke to patient, swollen”. The patient continued to feel worse, with increased pain and swelling, but she accepted that this was normal following an extraction, with this having been her first extraction ever.

Over the next weekend, she began to have difficulty swallowing, so she called Dr. A’s office, which the recording said was closed but offered no other information. She went to a local hospital, where she was admitted with a diagnosis of a submandibular space abscess. She received IV antibiotics and underwent intra- and extra-oral incision and drainage procedures, which ultimately led to her recovery and hospital discharge. As a result, she was left with a permanent facial scar which made the patient self-conscious about her appearance.

Legal Action

An attorney was retained who filed suit on behalf of the patient, now plaintiff. Dr. A was named as a defendant for having been negligent in failing to prescribe antibiotics and for failing to perform adequate and timely follow-up after the extraction. Additionally, Dr. A’s practice entity was named, for failing to have proper protocols in place, and as the employer of the receptionist, based upon her having negligently provided the plaintiff with dental advice which allowed a then-conservatively-treatable infection to become an infection warranting hospital care and leaving the plaintiff with permanent disfigurement.

The plaintiff sought monetary damages which were based upon her hospital course and the scar formation, along with the emotional distress that both caused her.

The Litigation Process

During the discovery phase, depositions were conducted, most significantly of Dr. A and the receptionist. The questioning of Dr. A focused on why he did not prescribe post-extraction antibiotics in the face of the radiographic and clinical findings; he responded, in essence, that there was no swelling or purulence so he did not see a need to do so, especially because he had removed the source of the problem. He was also asked why there had been no office policy in place which required non-dental staff members to confer with a dentist before giving patients advice about dental problems, but he was not able to provide any substantive response.

When the receptionist was deposed, it became clear that she had no medical or dental training, that she did not understand the significance of the symptoms described by the patient, and that she had based her advice to the patient on having worked in a dental office for many years, during which she had seen a wide array of patient issues, including post-extraction swelling.

Expert support was easily found by defense counsel on behalf of Dr. A’s basis for not prescribing antibiotics in this circumstance, citing a growing sentiment in dentistry against providing antibiotics unless signs of an active infection are present. However, that expert could not justify the lack of definitive office policy to prevent the receptionist’s actions, nor those actions themselves.

So, an agreement was reached by which a settlement was paid through the coverage afforded to the office entity, as compared with Dr. A’s individual coverage, because the negligence arose not from his own negligent treatment but from the negligence of the practice entity in failing to establish policy, and from the negligence of an employee of the entity. This resolution made for a non-reportable event to the data bank as against Dr. A.

Takeaways

There are diametrically opposing views by competent dental professionals regarding the use of antibiotics in situations like, and different from, this. As with virtually all clinical judgment decisions in dentistry, practitioners need to accept that others may have viewpoints counter to their own, but those differences do not mean that one approach is better or worse than another. What is most important, though, is that dentists must make considered determinations and be able to articulate sound reasons for what they do. This academic approach does not guarantee that a lawsuit will not be instituted, but it does mean that a solid expert-based defense can be provided.

When dental offices are closed, dentists should consider the ways that their patients may contact them in emergencies, whether through answering services, by giving patients their cell phone numbers, by forwarding them on to a covering dentist, or some other means. But simply having a recording, which advises callers that the office is closed and asking that they leave a message to be returned when the office opens, subjects the dentist to liability if a time-sensitive issue arises during off-hours.

In dental offices, it is only licensed professionals who are permitted to make decisions and provide advice regarding matters of patient health. Administrative staff members can and should handle administrative matters only, deferring all else to healthcare providers and making them aware of all health-related patient interactions. It is incumbent upon the dentists who oversee the work of their administrators to establish clear and unequivocal policies to assure that this protocol is never broken. This is not to say that written office rules are a necessity, but it needs to be made known to every member of the office staff that this is an immutable principle.

Finally, we take this opportunity to explain the value of maintaining coverage for the actions of all office staff members, in addition to the dentists. In this case, had there been no malpractice insurance policy covering the practice entity, there might not have been a policy provision which provided defense and/or indemnity protection for the actions of the receptionist, so the potential would have existed for an out-of-pocket payment to compensate the plaintiff for the receptionist’s improper actions. Similarly, had Dr. A not established a business entity, it would have been he, and not the entity, as the employer of the receptionist, so his personal malpractice policy would have come into play to defend and indemnify her actions, if that policy’s provisions allowed for that. While we do not advise how a practice should be set up from a business perspective, and while we do not speak here to the details of specific policies, we do want to make it clear that all of these issues are properly considered when professional liability policies are bound and renewed. MedPro’s professionals are available to discuss all of the situations raised in this case study.

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.