How Social Media Affects Dental Malpractice Lawsuits

Background Facts

‘Dr. J’ was a young general dentist in the process of building her practice, in part through the use of a number of social media platforms. As a result of that exposure, with followers continually growing, she saw a constant uptick in the amount of new patients and an expanded array of dental procedures performed – especially in cosmetic dentistry – among already-existing patients. In addition to information provided on her own practice website, Dr. J created detailed social media professional profiles for herself which provide certifications she obtained. Among the many credentials listed was advanced training in root canals.

‘Mr. T’ was a healthy, 27-year-old male patient of the practice, taking no medications and having no known allergies, whose social media presence can best be described as large, to the extent that he might even reasonably be viewed as an influencer of sorts. Despite his full-time work in a retail clothing business, he posted multiple times each day, with photos of nearly everything he did and descriptive captions. On his way to visit Dr. J on March 3^rd, he posted a “selfie” of his swollen face, which he would later learn was due to a periapical infection on tooth #28, a tooth which had a deep restoration and which had been “acting up” for more than a month.

Dr. J performed endodontic therapy on that premolar after explaining to Mr. T that she was as much of an expert in doing root canals as specialists in that field. The procedure was completed that day, and Mr. T was given a prescription for Erythromycin. Over the next few days, Mr. T’s social media photos documented an increase in facial swelling, with it spreading into the submandibular region, but Dr. J responded to daily calls by telling her patient to continue taking the antibiotics and apply local measures such as hot compresses and saline rinses.

When he began to have difficulty swallowing over the weekend, he went to a hospital emergency room because Dr. J’s office was closed and he received no response to two voicemail messages. The hospital’s on-call oral surgeon examined Mr. T and determined that his condition was an impending Ludwig’s Angina. The surgeon performed intra- and extra-oral drainage of the abscess with an extraction of tooth #28, in the operating room under general anesthesia. The purulence obtained was sent for culture and sensitivity testing, but the oral surgeon empirically changed the antibiotic regimen to Clindamycin and Amoxicillin in advance of obtaining test results. Mr. T was discharged from care by the oral surgeon some 3 weeks later, leaving a facial scar but no other apparent residual effects.

Legal Action

Approximately 9 months later, Dr. J was served with papers that alerted her to a suit which was initiated by attorneys for Mr. T. Dr. J’s malpractice carrier assigned counsel, who responded as required, starting the process of document exchange, including the demands for the providing of details of the injuries claimed by Mr. T. In addition to his scar, the hospitalization and associated costs, and the need for a dental implant with restoration, Mr. T also claimed in a sworn written statement that he was so uncomfortable following surgery and so embarrassed by his scar that he had been unable to enjoy life as he normally had before these events. His social life of going to clubs and restaurants with friends had stopped since the defendant’s treatment, he could not travel, and he would no longer play soccer (as he had done every weekend) due to a new fear of the ball striking the right side of his face. Regarding his claims of negligence, Mr. T asserted that Dr. J had prescribed an ineffective antibiotic, which allowed the infection to expand, in the face of her failing to clean and then obturate the apical 2mm of tooth #28, and that she failed to appropriately respond to his post-treatment complaints.

Discovery

One of the first actions Dr. J’s attorneys took was to explore Mr. T’s social media activity, which is an extremely common approach among defense attorneys, as well as looking at their own client’s social media presence. Although Dr. J had told her attorneys that Mr. T continued his social media activity following his dental treatment in essentially the same way as he had beforehand, they found that all postings beginning with March 3^rd had been deleted. So, they sought, and received, authority from the Court to obtain copies of all of Mr. T’s deleted posts directly from the platform operators. All deleted posts by the plaintiff were provided to defense counsel who, pursuant to Court directive, gave over copies to the plaintiff’s attorneys.

What Dr. J’s attorneys learned – from both the plaintiff’s deleted posts and their own client’s website and social media presence – would be critical to the way that this case would turn out. Addressing first the defendant dentist’s website and her other activity, they knew immediately, based upon having thoroughly gone through the academic and training background of Dr. J, that she had grossly overstated her endodontic credentials as having had “advanced training in root canals”: she had no formal post-doctoral training at all, other than fulfilling her annual state-mandated continuing education requirements, with only a 3-day online course entitled “An Overview of Complicated Endodontics”. This overstatement, at best, or misrepresentation, at worst, could be the source of aggressive and potentially fruitful cross-examination by plaintiff’s counsel in front of a jury, which would hurt her professional credibility and severely hinder her chances of that jury finding in her favor on the issue of liability.

But what was discovered upon reviewing the plaintiff’s deleted posts was of far greater significance, as what they showed contradicted literally each of his sworn-to claims that his lifestyle had been irrevocably changed for the worse. A series of posts, just a month before his sworn statement was signed, showed him on the beach in Jamaica, drinking and dancing to a steel band with friends of his who “liked” those posts. He posted photos of himself in 5 separate soccer league games beginning in June. A video from a Halloween party showed him in costume and talking about what a “great time” he was having. And his review of a restaurant he had visited just a week later said “best dinner in a very long time”.

Dr. J’s counsel were not aware whether the plaintiff’s attorneys had examined the defendant’s website and other public posts, but assumed that to be the case and that counsel would exploit the overstatements at a time advantageous to the plaintiff. They also did not know if the plaintiff’s attorneys had looked at the damaging posts of their own client.

Case Resolution

In weighing the pros and cons of confronting Mr. T’s attorneys with what they had discovered – as compared with simply waiting for depositions or trial – they ultimately opted to try to end the case as quickly and efficiently as possible by explaining to plaintiff’s counsel what they had found, and how that would serve as a devastating blow to the plaintiff if a jury were shown, side by side, his sworn statement of claimed injuries with the directly contradictory social media posts. After plaintiff’s counsel subsequently looked into the issue as suggested by defense counsel, he acknowledged that he had not been aware of any of that, and that once they explored their concerns with the plaintiff, which he fully understood, they discontinued the case against Dr. J.

Takeaways

The three dental issues of concern in this case – the quality of the endodontic filing and obturation, the appropriateness of the antibiotic prescribed by Dr. J, and the level of follow-up provided when the patient called with complaints – turned out not to have any bearing, whatsoever, on the outcome of the case, not because they were unimportant but because they happen to have been overridden in significance by issues in this dental malpractice case which had nothing to do with dentistry. This is not to say or suggest that, under different circumstances, these same aspects of the dental care could have been the only things to have mattered and to have been “battled out” between experts for the plaintiff and defendant, and resolved by a jury.

The overriding issues presented in this case study are the impacts that website content and social media posts may have in the context of a dental practice. While there can be no doubt that professionally done websites, which delve into the dentist’s background and training and the scope of practice, can serve to build practices, they can also pose problems and create weaknesses if litigation arises, especially if the dentist’s stated credentials are exaggerated or inaccurate, or if, for example, the dental procedure at issue in a given situation is not one which is among the dentist’s stated regularly performed treatments. So, dentists are wise to be prudent and accurate in their website content. Similarly, social media posts by dentists, even in their personal capacities, may be allowed by courts to be shown to juries, if any relationship can be drawn to their professionalism. From a risk management perspective, dentists should routinely review their own websites and social media presence, and should perform searches of themselves and their practices to locate inaccurate material that their patients – and their attorneys – might view; there may well be expert techniques to address inaccurate and/or harmful content.

In this case, it was the patient’s personal activities, as shown on his social media postings, which directly contradicted sworn claims he had made to the court in a document accompanying litigation papers. It is primarily for this reason – the corroboration or negation of personal injury claims – that diligent defense attorneys will undertake a thorough review of all plaintiffs’ online presence, and will seek the intervention of the court, if needed, to recapture even those items which are damaging to a plaintiff’s case but which were deleted. Whether regarding plaintiffs or defendants, posts on the internet are nearly always able to be retrieved, regardless of the time that has passed since they were taken down.

As this case study shows, it could be internet content, rather than dentistry, which determines the outcome of a dental malpractice case.

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.