Case Study

When Personal Relationships Affect Professional Care

Marc Leffler, DDS, Esq. – October 2021

CASE STUDY BACKGROUND

A 59-year-old woman had been a patient of the same general dentist since she was in her teens, shortly after the dentist started his practice. The dentist had watched this patient grow up, begin her career, raise a family, and now plan her retirement in the next few years. He had attended her family’s functions over many years. When the dentist noticed that his friend had started smoking heavily in her mid-20s, it upset him but he never said anything to her, despite the habit continuing and worsening.

In the dental office, which used only handwritten paper records for clinical notes, the woman completed a health (medical and dental) history form some 40 years prior, and twice after that, approximately 15 and then 30 years after the first. On the two most recent forms, she acknowledged that she smoked cigarettes, but she did not state how much. The dentist did not question her in that regard, or, in fact, with regard to anything in her health history. In reality, she had a 45-pack-year history (1 pack a day for 45 years) by the time the dentist later retired.

Because the woman was the type of patient who tended to present only when something bothered her, there had been no formal treatment plans established for her. She had cleanings every few years, but because of her good home care, she had needed little in the way of interventional dental care: extraction of her two upper third molars in the early days, several fillings, and root canal therapy and a crown for a tooth which broke when a soccer ball hit her face.

About two years before the dentist’s retirement, the patient complained about soreness and roughness on the right lateral border of her tongue, which had bothered her “on and off”. The dentist looked in her mouth and found a red, slightly eroded area on the tongue, adjacent to what he viewed as a rough spot on a multi-surface amalgam restoration he had placed on tooth #31 in the past. The dentist smoothed the restoration and assured the patient that she would feel better after the tongue had some time to heal. There was only one further dental visit, which involved an occlusal adjustment of the aforementioned upper left crown, but the dentist did not ask about or check the tongue.

At the dentist’s retirement party, he suggested that the patient visit the young dentist who had purchased his practice, and she did so just a month later. At that visit, the new dentist took a full mouth series of radiographs, did a tooth-by-tooth assessment, and performed a cancer screening by viewing and palpating all of the tissues, intra- and extra-orally, about which the patient remarked that she had never had such an examination before. The examination revealed the presence of a large eroded and indurated lesion on the right lateral border of the tongue, as well as an enlarged lymph node in the right neck. She was immediately referred to an ENT, who conducted a work-up that diagnosed a squamous cell carcinoma of the tongue; staging protocols determined that she had stage III cancer. She underwent a partial glossectomy with a neck dissection, followed by a course of radiation therapy, but she felt disfigured, embarrassed by her appearance, and had difficulty eating and drinking.

LEGAL ACTION

Despite her many years of friendship with the dentist, the patient sought legal counsel, encouraged by family members. After obtaining the retired dentist’s records, and those of the new dentist and the cancer-treating doctors, the attorney consulted with various dentists and physicians who advised the attorney of their opinions that the malignant lesion was present and diagnosable for years prior to its ultimate diagnosis, when it could have been treated much more conservatively and when the patient’s life expectancy would have been able to be preserved for far longer.

The retired dentist was sued for failing to diagnose the patient’s squamous cell carcinoma, thereby causing her to undergo life altering treatments, negatively affecting her quality of life, and decreasing her life expectancy.

LITIGATION

During the deposition phase, the patient-plaintiff testified, quite sympathetically, about the changes to nearly every aspect of her life, and there was no doubt that a jury would see her as being disfigured. She also discussed how she viewed the dentist-defendant as a friend, almost a family member, and she had placed her trust in him. Questioning about her smoking history made clear how much and for how long she maintained that habit, and she acknowledged knowing that smoking placed her at greater risk for developing cancer and other health problems. She also accepted the fact that she had not been the type of patient to present to the dentist on a regular basis for check-ups and cleanings, but she countered by testifying that she saw and spoke to the dentist regularly outside of the office, and he never put pressure on her to see him more frequently.

The dentist served as a truthful and contrite witness, admitting that he never stressed to his patient-friend the importance of recall visits, and that he had not performed thorough cancer screenings, in large part because the patient generally only came when she had a problem.

Defense counsel obtained the opinions of dental experts who were unable to defend the dentist’s inactions, and oncology experts who concluded that the lesion had been present and identifiable for years before its discovery, when it could have been treated more locally and more conservatively, without impact upon the plaintiff’s longevity. With the dentist’s consent, the case was settled within policy limits. The dentist subsequently attended the wedding of the patient’s daughter.

TAKEAWAYS

It is not uncommon for dentists to have patients in their practices who only visit when they have a problem. That does not excuse the need for the dentist to perform complete radiographic and clinical examinations, to include cancer screenings, and to have their patients update their health histories, at intervals consistent with their own protocols, whenever those patients do present. If patients refuse complete examinations, despite being advised that such refusals may be detrimental to their health, then the dentist should document the interactions well each time they occur. Dentists may wish to consider dismissing repeatedly noncompliant patients from their practices, but that should be done so as not to abandon patients in the midst of treatment, and allowing them adequate time to find a new dentist, with emergency availability provided during that interim period.

It is also not uncommon for longstanding dental patients to become friends of their dentists. While such relationships may better both of their lives socially, they may also provide for a feeling of being uncomfortable when the dentist believes that a serious discussion is needed if the patient does not follow proper home care, does not regularly present for dental visits, does not abide by the dentist’s advice, or does not pay bills. Under the law, it is entirely irrelevant if a patient is a friend, a family member, or was not even charged for care, when considering whether malpractice occurred. It is also a common misconception that patients who are personally close with a dentist will never sue. So, from a risk management perspective, all patients, regardless of status, ought to be treated dentally in the same way, in accordance with the appropriate standards of care. As this case demonstrates, personal and professional relationships can be kept separate.

Dentists may be sued in malpractice both for commission of improper care, i.e. by performing treatment in a negligent fashion, and for omission of proper care, i.e. by failing to diagnose a condition which should have been diagnosed. Either situation has the potential to lead to significant damages claims, with the latter pointing out the need for thoroughness in and frequency of examinations.

At the final visit with the defendant, when the patient presented for an occlusal adjustment subsequent to the dentist previously noting the red eroded area of the tongue and then smoothing out the restoration on tooth #31, looking again at the tongue so as to compare it with what he previously noted — and documenting that — would have shined additional light onto the situation. Whether or not that would have changed the patient’s ultimate treatment or result, it would have demonstrated the dentist’s diligence to a potential jury. It could have also possibly led to an earlier referral to an appropriate specialist, thereby allowing his attorney to comment that the defendant dentist understood the importance of his finding, and that the dentist would have done more detailed examinations, and taken proper steps, if only the patient had presented more regularly and for routine care.

Finally, it is all too frequent that patients become aware of previously undiagnosed conditions, or improprieties in their prior dental care, only when they leave the care of one dentist in favor of another. While the “new” dentist has a clear obligation to inform the patient of what is found upon examination, the way that such information is imparted may mean the difference between the prior dentist being named in a lawsuit or not. Professional communication is a vital risk management tool.


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