Case Study

Who’s in Charge Here?

How a Dental Office’s Receptionist (and 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.


The opinions expressed through this post are the opinions of the individual authors and may not reflect the opinions of MedPro Group or any of its individual employees. This document should not be construed as medical or legal advice. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your 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. MedPro Group is the marketing name used to refer to the insurance operations of The Medical Protective Company, Princeton Insurance Company, PLICO, Inc. and MedPro RRG Risk Retention Group. All insurance products are underwritten and administered by these and other Berkshire Hathaway affiliates, including National Fire & Marine Insurance Company. Product availability is based upon business and/or regulatory approval and may differ among companies. © 2022 MedPro Group Inc. All rights reserved.

Case Study

Opioid Abuse Following Dental Treatment

Underlying facts

Dr. D was a well-experienced general dentist who practiced in a small rural town, in which he was the only dentist. As a result of the lack of any dental specialists located less than nearly an hour away, he was familiar with practicing the full scope of dentistry, including extractions and other oral surgery procedures, so he felt confident addressing post-operative concerns.

In the week following high school graduation, he saw an 18-year-old male patient whom he had treated for many years. The patient, “P”, had been admitted to enter trade school to become a carpenter in early September, so he wanted to have his lower right wisdom tooth, which had been bothering him episodically, treated before beginning school. Dr. D examined P clinically and radiographically, and found tooth #32 to be soft tissue impacted, in a vertical position with roots not fully formed, and with the surrounding gingiva slightly inflamed; due to the gingival condition, a prescription was given for Penicillin, to be taken for five days before returning for the extraction. The patient fully complied and returned as scheduled.

On the date of treatment, Dr. D made a conservative soft tissue incision and elevated the tooth out of its socket before placing a single suture. Prior to leaving the office, P said to the dentist, “I’m a real baby, so please give me something strong for the pain.” Against his better judgment, given the ease of extraction, Dr. D provided a prescription for 20 tablets of acetaminophen with codeine – 1-2 tablets every 4 hours, as needed for pain – and instructed the patient to also finish the remaining two days’ worth of Penicillin. When Dr. D called P the following morning, P said that he was literally writhing in pain, so Dr. D told him to use local measures and take the pain medications.

The patient appeared at the office on the third post-operative day, complaining of severe pain (10 on a scale of 10) and having used all of the pain medications prescribed. P asked for something even stronger, and although Dr. D could not clinically account for such severe pain based upon what he saw when examining the site, he wrote a prescription for 15 hydrocodone pills, with instructions to take 1 every 4 hours, only as needed. P continued to contact the dentist daily, with ongoing pain complaints, so at the suture removal visit a week following extraction, Dr. D gave P a prescription for 20 oxycodone tablets with the same frequency instructions, despite all clinical signs showing a well-healing extraction site and adjacent areas. Three days later, P called the office, saying that he was still in pain and that he had run out of pills, so he needed more; Dr. D knew that this meant that P was taking more pills than the prescription called for, but he gave a refill anyway.

The process continued for the next five weeks, with phone calls, office examinations, and additional prescriptions given. Dr. D received a call from P’s father, who was also his patient, saying that P had been admitted as an in-patient to a drug treatment facility, pursuant to court order, following his arrest for driving under the influence of narcotics. P remained in the facility for more than three months, so he was unable to begin school, and was re-admitted to the treatment facility shortly after getting into a physical altercation at home with his younger sister. 

At the suggestion of the attorney consulted to review the events and advise P’s parents, P’s father, “F”, was appointed by the court as P’s Guardian, so as to be able to handle all of P’s matters, and make decisions on his behalf, for health, legal and all other issues. The first thing that F did was to seek and obtain a court mandate to keep P in the facility until the court directed otherwise.

F’s next step was to file a lawsuit on behalf of his son, against Dr. D, claiming negligent treatment in his prescribing of narcotics at the surgical visit, and then prescribing more potent opioids going forward, without clinical signs demonstrating their need, to the point that P became addicted to these drugs and unable to function without them.

The suit sought, as damages, monetary compensation for P’s pain and suffering, up until then and extending into the future, for lost potential earnings due to his not being able to enter trade school, and for the drug treatment facility costs borne by F. Upon his being served with papers, Dr. D contacted his malpractice carrier, and was provided counsel to defend the negligence/malpractice claims.

In the early days of the litigation, the defense counsel provided by the insurance carrier filed a motion to dismiss the claim for lost earnings on the ground that admission to any school does not guarantee successful completion of the course of study with graduation, thereby making F’s claim on that aspect speculative. The court agreed and dismissed just that component of the claim, leaving everything else intact.

With counsel unable to obtain expert support for the defense, the case was settled for a substantial sum. Dr. D was also sanctioned by his State Dental Board, suspended from practice for six months, required to take continuing education in the prescribing of narcotics, and fined.

Takeaways

The American opioid crisis continues to expand and worsen, with dentistry becoming an increasingly involved part. A 2018 retrospective large group study regarding 2015, performed at the Stanford University School of Medicine and published in JAMA Internal Medicine, reported alarming results relating to dentists and dentistry: (1) 5.8% of studied patients, age 16-25, who received their initial prescription of opioids from their dentist were diagnosed with opioid abuse during the 12 months following that initial prescription; (2) of the 13% of those studied in this age population who received opioid prescriptions, 30% of those received them from their dentist; and (3) the median number of narcotic pills received from their dentist by patients in the study who became addicted was 20. The study eliminated all people who had received any opioid prescriptions, or who had been diagnosed with opioid abuse, within the year prior to receiving opioids from a dentist, in order to try to focus in on the issue studied.

While it is not the purpose in evaluating this case study to suggest to dentists whether they should prescribe narcotics, non-steroidal anti-inflammatory drugs, over-the-counter medications, or nothing at all, the facts of this case point out the potential dangers associated with one of these types of medications — at the exclusion of potential dangers of other types of medications — in an effort to simply raise awareness in this realm. 

The court’s dismissal here of the lost earnings claim, as speculative, conceptually speaks to any aspect of any claim. Unless there is a fact-based, reasonable basis for a plaintiff’s assertion for which s/he seeks compensation, it will not be permitted to proceed. Hunches, suppositions, and hypotheses which are used to try to prove any element of a lawsuit will be excluded and will serve as a bar against the viability of cases — or portions of cases — because factual proof and expert opinions held to a reasonable degree of dental certainty are the necessary components for a case’s success; defense counsel who are able to demonstrate to the court that any element of a plaintiff’s claim has no factual basis or has no science-backed foundation will effectively have the claim or portion of the claim dismissed “as a matter of law”.

Finally, we address the issue of the patient’s complaints, which were inconsistent with Dr. D’s clinical findings, as he continued prescribing narcotics. Such a scenario is not uncommon in circumstances involving patients who are becoming addicted and/or who may be passing the narcotics off to others. In any case, it should serve as a warning sign, just as any other aspect of dental practice when things simply do not make sense. These situations are of the type that might warrant the dentist to suggest that the patient obtains a second opinion — as geographically inconvenient as that could be — to make sure that the path being travelled is an appropriate one; it is also potentially protective in the event that, like here, a bad outcome develops and litigation ensues.


The opinions expressed through this post are the opinions of the individual authors and may not reflect the opinions of MedPro Group or any of its individual employees. This document should not be construed as medical or legal advice. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your 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. MedPro Group is the marketing name used to refer to the insurance operations of The Medical Protective Company, Princeton Insurance Company, PLICO, Inc. and MedPro RRG Risk Retention Group. All insurance products are underwritten and administered by these and other Berkshire Hathaway affiliates, including National Fire & Marine Insurance Company. Product availability is based upon business and/or regulatory approval and may differ among companies. © 2022 MedPro Group Inc. All rights reserved.

Case Study

Anterior Endodontic Treatment Leading to Paresthesia

Marc Leffler, DDS, Esq.

Background facts

A 37-year-old man presented to his general dentist in excruciating pain associated with a lower left canine tooth, #22; the tooth had undergone trauma during a hockey game years ago, but had been asymptomatic since days after that event.  Even though the tooth looked radiographically to require endodontic treatment (RCT) which would be straightforward, the dentist chose to refer the patient to an endodontist due to the patient’s severe symptoms.  Within an hour, the patient presented to a local endodontist with a printout of the periapical in hand, but the endodontist took a Panorex as well before doing her examination; it was clear that RCT was needed.

Consent for the procedure was obtained, but with the apex of #22 lying well anterior to the mental foramen, the endodontist did not view or express paresthesia as a real risk.  Local infiltration with one carpule of Septocaine (Articaine HCl 4% with epinephrine) was delivered but the symptoms barely abated, so a mandibular block using an additional carpule of the same anesthetic was given, fully anesthetizing the area.  The RCT uneventfully went forward to completion, with the final film showing the single canal densely filled to the radiographic apex with gutta percha.  The chart entries documented the anesthesia and endodontic procedures in appropriate detail.

At a post-treatment visit two weeks later, the patient asked why “the Novocaine never wore off.”  The endodontist suspected that this was a temporary condition, so she re-appointed the patient for two months afterward, at which time the condition was found not to have changed.  The endodontist referred the patient to an oral surgeon, who examined the patient and explained to him that he believed the persistent numbness was related to the block injection, so it was not amenable to surgical correction.  Normal feeling never returned.

Legal status

The patient retained an attorney to pursue an action against the endodontist.  Records were obtained and a dental malpractice action was filed, claiming negligence but not claiming lack of informed consent, for unknown reasons.

The endodontist notified her malpractice insurance carrier upon being served with papers, and defense attorneys were assigned.  By way of the usual exchange between counsel at the early stages of litigation, the claims of negligence were quite specific: improper injection technique and inappropriate use of Septocaine for a mandibular block injection, thereby causing permanent injury to the left inferior alveolar nerve.

Litigation events

Following the deposition testimony of the patient, now plaintiff, the deposition of the endodontist was scheduled.  In preparation, the endodontist and her attorneys met several times, to fully advise her of the process and make sure she knew the types of questions she could reasonably expect.  During and outside of these sessions, she reviewed the details of the anatomy and pathways of the inferior alveolar nerve and the other cranial nerves which course the oral cavity, planned her explanation of every detail she used in her block injection technique, which was being criticized as negligent, and reviewed scientific information about Septocaine and the other frequently used local anesthetics.

At deposition, she testified that, although she could not remember giving this particular injection some two years prior, she always used and still uses the same technique every time, which she provided in “textbook” fashion.  Questioning about Septocaine was detailed, particularly focusing on a number of published papers which anecdotally described cases of paresthesia following block injections of Septocaine in non-surgical settings; she fully expected this line of questioning and did not provide any testimony counter to her position.

Here, the injury was not a questioned issue, but a viable case of dental malpractice requires that a negligently-performed procedure, as opposed to simply a procedure, be the cause of the injury.  So, without any evidence from which the plaintiff’s dental expert could conclude that the injection technique was improper, i.e. negligent, that claim was withdrawn, leaving the only remaining claim that Septocaine should not have been used for a mandibular block injection due to its propensity to function as a neurotoxin and cause nerve injuries.

In the lead-up to trial, defense counsel asked the judge for a Frye Hearing, given the one very limited issue and its nature.  In the many states that employ this standard, this type of hearing seeks to establish whether the theory — here, that Septocaine is neurotoxic and, therefore, should not be used for block injections — is one that is “generally accepted in the relevant scientific community”, or, instead, “junk science”, the latter of which is inadmissible.  At the Frye Hearing, plaintiff’s expert general dentist argued that Septocaine is a known neurotoxin not to be used for mandibular blocks, with Lidocaine or Carbocaine the proper drugs for that purpose; on cross-examination by defense counsel, the expert was unable to reference any publication which was anything but an anecdotal case report, and he also acknowledged that there had been reported cases of nerve injury following injections with Lidocaine and Carbocaine.

Defense counsel produced a dental school faculty member in the endodontics department who had additional training in biochemistry.  This expert testified that formal research studies in refereed journals had debunked the neurotoxicity theory, provided copies of those studies to the court, and explained why, from a biochemical standpoint, neither Septocaine, Lidocaine nor Carbocaine was neurotoxic.  The dental community, this expert explained, does not accept the approach of the plaintiff, and has not for some time.  The judge concluded that the plaintiff had not demonstrated scientific community acceptance of his theory.  With nothing else left in plaintiff’s case, his attorney discontinued the case.

Takeaways

Even though this case did not contain a claim of lack of informed consent, most dental malpractice case filings do have such a claim, and the facts here certainly would have justified it and would have been a challenge for the defense to overcome.  With State differences as to specifics, the general proposition regarding informed consent requirements is that a patient must be advised before a procedure of the foreseeable risks, the benefits, and the viable alternatives with their risks.  Here, the endodontist specifically excluded the risk of paresthesia due to the distance of the tooth from the mental foramen, but paresthesia does at times occur following mandibular block injections.  It raises a question to be considered as to whether giving a block injection for any procedure warrants such a warning; we do not provide an answer, as that choice belongs with the dentist’s judgment, based upon a number of factors associated with a given set of circumstances.

This case contains two situations where referrals were made, the first from the general dentist to the endodontist to perform the procedure, and the second to an oral surgeon when a problem arose.  As to whether to perform a procedure or refer the patient, dentists properly base their judgments in this regard upon their own training and experience, and the specific patient circumstances and needs.  When complications develop, the assessment is essentially the same, with the added factor of whether the time within which action must be taken for the patient’s well-being is limited.  In litigation, dentists are often questioned about whether s/he had an adequate level of skill to have performed a procedure or evaluation, as compared with a dental specialist, so this thought process is always a beneficial one.

The defense attorneys’ preparation of the endodontist for deposition proved valuable and case-changing by focusing their client into the relevant areas of planning. Similarly, the endodontist became thoroughly acquainted with all of the case subject matters in order to best be able to advocate for herself; she did a review of research and re-familiarized herself with anatomy.  Litigation is a team effort between client, attorney, expert witnesses, and insurance company.

Problems do sometimes occur following dental treatment, but that does not necessarily equate to malpractice.  Good records which document events and findings are, perhaps, the most valuable tool for defense attorneys.

Finally, the use of a less-than-common pre-trial technique, the Frye Hearing, proved dispositive.  It is not expected that dentists would be at all familiar with it, but it demonstrates how an insurance carrier and its experienced defense attorneys can team up for a successful result.


The opinions expressed through this post are the opinions of the individual authors and may not reflect the opinions of MedPro Group or any of its individual employees. This document should not be construed as medical or legal advice. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your 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. MedPro Group is the marketing name used to refer to the insurance operations of The Medical Protective Company, Princeton Insurance Company, PLICO, Inc. and MedPro RRG Risk Retention Group. All insurance products are underwritten and administered by these and other Berkshire Hathaway affiliates, including National Fire & Marine Insurance Company. Product availability is based upon business and/or regulatory approval and may differ among companies. © 2022 MedPro Group Inc. All rights reserved.

Case Study

Are You Ready to Perform Sedation Dentistry?

Marc Leffler, DDS, Esq.

Background facts

A general dentist in practice for over 30 years (“Dr. E”) decided to take advantage of a change in her state’s laws regarding dentists being permitted to provide sedation in conjunction with dental procedures, by attending a weekend course on dental sedation management. Dr. E maintained BLS certification, as did one of her three dental assistants. Brochures in her office waiting room made it known that patients could now be provided with sedative medications, and a similar update was added to the practice’s website.

A longstanding 73-year-old male patient (“Mr. Q”) who was 5’10” tall and weighed 255 pounds, with hypertension (treated with a beta-blocker) and Type II diabetes (treated with an oral hypoglycemic and “diet”), appreciated having all of his dentistry performed in one office setting by Dr. E, whom he had known for many years. Over time, she had provided him with treatment in nearly all phases of dentistry (fixed prosthodontics, periodontics, endodontics, and a mandibular advancement device for obstructive sleep apnea [OSA]), and he was now in need of transitioning toward a maxillary implant-supported prosthesis because the fixed bridge abutment teeth had become increasingly periodontally involved. Working together, they agreed on a plan which involved the extraction of the remaining upper teeth and the placement of an immediate maxillary denture, with implants to be placed at a later date.

With Dr. E now offering sedation dentistry, Mr. Q requested sedation for the extraction phase, and Dr. E agreed. An appointment was scheduled for a month later, by which time the laboratory-fabricated denture would be ready. In preparation, the patient was told to refrain from taking anything by mouth after midnight and up to his 11:30 a.m. appointment. Dr. E saw no need to obtain a medical consultation because she knew the patient quite well and believed that his health status had been unchanged for over a decade. Mr. Q complied with every aspect of the pre-treatment instructions he had been given.

The patient presented to the office on the morning of treatment, accompanied by his adult daughter. Dr. E seated her patient in a “supplemental” treatment room and gave him a 10 mg tablet of diazepam and a hydrocodone-acetaminophen tablet, with the goals of sedation and pain abatement by the time treatment would start about 30 minutes later. She told him to lay back in the chair and relax, while she turned out the room lights and went to treat another patient. Approximately 15 minutes later, she looked in on Mr. Q, to find him sleeping and snoring loudly. But, from the adjacent room, she soon heard the snoring abruptly stop, replaced by gurgling and what she would recall to be an “odd gasping sound”.

Dr. E went to check on her patient and found him not responsive to her speaking or hand pressure. Because this room was generally not used for treatment, but rather just examinations and post-operative checks, it was not equipped with oxygen, so she asked her assistant to bring in the centrally-hooked in N2O/O2 set-up from another room. By the time the assistant was able to disassemble that equipment and attach an O2 canister, an estimated 6-7 minutes had elapsed. Dr. E finally applied 100% O2 through a nasal mask, as she did not have a full face mask in the office, so she had no means to force the flow into Mr. Q’s lungs. There was no pulse oximeter available. While she had been trained in CPR techniques, the statute had not required (and she did not complete) ACLS training, so there was neither a laryngoscope nor an endotracheal tube in the office. At this point, Dr. E instructed a staff member to call 911. By the time paramedics arrived and transported him to a hospital, Mr. Q was pronounced dead.

Despite his age, an autopsy was performed due to the circumstances. Among the findings of the coroner were that the patient had died of asphyxiation due to an obstructed airway, and hypoxemia. His pre-existing OSA (which was well-known to Dr. E, but apparently not adequately considered) played a significant role in this series of events coming to fruition.

Legal action

Shortly after Mr. Q’s estate was in place, relatives hired an attorney who obtained Dr. E’s office records, which were evaluated by a dentist anesthesiologist. Based upon the review of that practitioner, the attorney wrote a letter to Dr. E, in which he demanded a monetary settlement following a list of claimed acts/omissions of negligence which were claimed to have caused the patient’s death: failure to obtain medical clearance; failure to directly monitor the patient after the delivery of sedative and narcotic medications; failure to consider and account for the patient’s underlying conditions, specified as age, obesity, diabetes, OSA, and hypertension; failure to have training and knowledge regarding the use of resuscitative equipment; failure to have the necessary emergency equipment available and ready to use; failure to train office staff as to how to respond to medical emergencies; and failure to timely contact emergency responders.

The letter concluded with the threat that, if the matter was not settled within a stated time period, the family would seek criminal prosecution of the dentist based upon “gross negligence”. As an aside, this threat led to a disciplinary inquiry against the attorney. Because expert support for the dentist’s actions could not be obtained, Dr. E’s professional liability carrier reached a pre-suit settlement with the estate, for an amount which took into account the patient’s age and pre-existing medical conditions. Dr. E was not criminally prosecuted, but she was sanctioned by her State’s Dental Board.

Takeaways

The author is reminded of his father’s words many years ago, after passing a road test and becoming a licensed driver: “Just because the state gave you a license to drive doesn’t mean you know how to drive.” Similarly here, Dr. E had fulfilled the basic requirements of her state’s regulations for the use of sedation in conjunction with dentistry, but that was demonstrated in this case study to be far less than what was needed to safeguard her patient under these circumstances. Dentists are wise to recognize and constantly uphold the concept that they must “do no harm”, and, as a corollary, realize that the lawful ability to perform treatment does not equate to a technical or academic level of expertise to safely and properly perform that treatment. Practicing within one’s abilities means not only managing procedures, but the ability to manage complications and the judgment to know when not to engage in the first place, despite whatever pressures may be placed by external sources—whether patients or employers.

While it is fairly infrequent for the norms of dentistry to differ between states, the areas of enteral and parenteral sedation, as well as general anesthesia, are clear exceptions. Dentists who practice on the borders of neighboring states may be fully permitted to sedate their patients in one of their offices, while strictly forbidden from doing so in another. Therefore, dentists should become aware of what local laws do and do not allow, and should periodically familiarize themselves with changes that come about, in order to protect themselves and their patients. Organized dentistry groups often establish guidelines, but they do not establish local laws and they do not have the ability to govern dental practice. So reliance on such guidelines, alone, may lead dentists astray.

The issue of obtaining medical consultation or clearance in advance of dental procedures has been a concern for years, and its need continues to grow as the population ages and more medical treatment solutions extend lifespans. Dentists are not expected to be as expert regarding medical issues as their physician colleagues, but dentists should know when to seek the input of treating physicians. It should not “bother” physicians to assist in the dental health of their patients, but even if they appear to be inconvenienced by a question from a dental colleague, that cannot serve as an excuse for failing to obtain a needed consultation. Finally on this subject, good risk management dictates documentation whenever such a consultation takes place, ideally by a writing (letter, email) from the physician, but at least by way of a contemporaneous chart entry by the requesting dentist in which the physician is identified and the guidance is detailed.

When sedation is used by dentists, complete familiarity with all medications employed is an absolute. So, too, are the concepts of titration and dose, so as to allow the patient to be adequately sedated, but not overly so, the latter situation greatly increasing risk. In some patients, especially if older, sedatives and/or narcotics have been known to lessen a patient’s drive to breathe, so caution must dictate. And the need to take, follow, and record vital signs cannot be ignored.

This case study involves a patient with numerous medical problems, some of which are generally addressed here. While all deviations from medical norms deserve due consideration, common conditions which are often seen as sources of malpractice suits include patients taking anticoagulants (bleeding concerns); patients with certain structural cardiac anomalies (potential need for antibiotic coverage); diabetes (increased infection risk, and management of empty stomach while maintaining adequate circulating glucose levels in sedation/general anesthesia settings); OSA and obesity (airway concerns, especially with sedation/general anesthesia); osteoporosis (impacts of bisphosphonates); and uncontrolled hypertension (stroke concerns). Careful medical history reviews and updates are critical to the sound medical stability of dental patients, whether sedated or not. As the old dental school adage goes, the teeth are connected to the body.

The final point here is to recognize that all team members of a dental staff have uniquely important roles in the safe practice of dentistry. Maximizing their regular and ongoing training will provide a sense of comfort among their dentist employers and an extra layer of protection for patients. It is often not until a problematic issue arises in an office that the value of the staff is truly appreciated.


The opinions expressed through this post are the opinions of the individual authors and may not reflect the opinions of MedPro Group or any of its individual employees. This document should not be construed as medical or legal advice. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your 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. MedPro Group is the marketing name used to refer to the insurance operations of The Medical Protective Company, Princeton Insurance Company, PLICO, Inc. and MedPro RRG Risk Retention Group. All insurance products are underwritten and administered by these and other Berkshire Hathaway affiliates, including National Fire & Marine Insurance Company. Product availability is based upon business and/or regulatory approval and may differ among companies. © 2022 MedPro Group Inc. All rights reserved.

Malpractice Minute

Dental Case Study: Is Informed Consent Necessary For Mandibular Blocks?

Marc Leffler, DDS, Esq. – March 2022

Background Facts

A 42-year-old healthy woman, Mrs. B, presented to her general dentist, Dr. W, on a scheduled visit for a Class 2 restoration on tooth #30, due to recurrent decay having developed adjacent to an open margin on an amalgam restoration placed decades earlier. Likely as a result of her meticulous home care and regular hygiene visits, she had very little dental work in her mouth, and whatever she had was performed many years prior. She was, therefore, nervous about her upcoming treatment and did not remember enough of her previous treatments to know what to expect.

After updating the patient’s medical history, reviewing recent radiographs with the patient, confirming the treatment planned – an MO composite – with the patient, and advising the patient that she would be receiving an injection to “numb up” the lower right portion of her mouth, Dr. W confirmed with Mrs. B that she was ready to have the treatment proposed go forward. With nothing more said, Dr. W proceeded to give a right-side inferior alveolar (“mandibular”) block, using 1 carpule of 2% lidocaine, 1:100,000 epinephrine. During the administration, the patient felt a “jolt”, and simply groaned, but did not move. The restoration was placed uneventfully.

The following day, the patient called the dental office, advising Dr. W that she still felt numb on the right side of her chin, lower lip and the gums just inside the lip. Dr. W assured her patient that the effects of local anesthesia sometimes remain for a short period of time, but everything should be back to normal by the next day, at the latest. But that next day, the numbness had not improved at all, so Mrs. B again called to speak with Dr. W. The dentist was perplexed at the circumstances, but told the patient that she had heard of rare cases of normal feeling never returning. The patient began to cry and asked why she had not been told of this prior to the start of treatment. Dr. W had no response other than to say that she has never had such a discussion with any patient about to receive that type of injection. Dr. W made no treatment recommendations. Mrs. B never returned to see Dr. W.

On her own, Mrs. B sought, within a month, the care of a neurosurgeon, who saw no other way to treat this condition than with medications to ameliorate what had become a sometimes painful and uncomfortable alteration of sensation, which the patient described as feeling like bugs crawling under the skin of the right side of her face, while simultaneously being unable to feel her right lower lip and chin at all; it was diagnosed as a “traumatically induced dysesthesia”. Despite modifications in the medications and their doses, the symptoms never abated.

Legal Status

About a year later, with no change in her physical status, Mrs. B and her husband contacted and retained an attorney skilled in handling dental malpractice cases, who sued Dr. W on their behalf. The claims asserted against the dentist were that she failed to give a proper block injection, thereby causing permanent injuries, and that she failed to obtain the patient’s informed consent prior to the start of treatment.

The case proceeded forward, with depositions taking place. With the dentist having been well prepared for her deposition, she articulated quite well the manner in which she administered the injection, and was able to correctly respond to questions regarding local anatomy. She claimed to have obtained informed consent, by simply receiving the patient’s approval to go forward. Dr. W testified that she was not aware of any requirement for a formal informed consent process for performing a restoration with local anesthesia. She also did not dispute the claim that the injection, and nothing else, caused the inferior alveolar nerve injury.

The Applicable Legal Statute

While States vary as to the requirements for informed consent, the State in which Dr. W practiced had a statute which stated, in essence, that prior to the performance of any invasive procedure, the practitioner performing the procedure must advise the patient, in language understandable to that patient, of the foreseeable risks, benefits and viable alternatives associated with the planned procedure, in such a manner permitting the patient to make a knowledgeable decision. The patient must then agree to move forward before the practitioner may do so. The statute is silent as to whether the consent obtained must be memorialized in writing.

Trial Lead-Up and Events

The dentist continually maintained that she had done everything according to the applicable standards of care, and that she was not required to go through a formal informed consent process each and every time she administered a mandibular block injection. Immediately before jury selection began, the plaintiff’s attorney made an unusual strategic decision: because his expert was unable to point to a specific area of negligence in the performance of the injection itself, he discontinued the claim of a negligently performed block, but continued the case forward on the theory of lack of informed consent.

Dr. W testified at trial just as she had at deposition. The patient testified that, had she known of the undisclosed risk in advance of the procedure, she would have sooner had the filling replaced with no anesthesia at all, rather than accept the risk that this type of injection posed. Based upon the testimony of the parties, under oath and in front of the jury, the judge determined that this case fell within the realm of negligence per se, which is a legal concept that states that if a violation of a statute directly causes an injury, the defendant is liable, leaving to the jury the lone question of the monetary value of the injury. The judge determined that, in the court’s interpretation, a mandibular block was an invasive procedure about which the patient had not been properly advised, but which the statute required she should have been, thereby depriving her of the opportunity to undergo the procedure without anesthesia and, therefore, with no nerve injury risk. The court also held that this violation of a statute, which was the predicate for the injection having been given, was then, consequently, the direct cause of the injury, as the defendant dentist had admitted.

The jury was directed to presume liability and award the patient a measure of damages which its members believed would fairly and reasonably compensate the plaintiff. The jury did just that and made a substantial monetary award.

Takeaways

It is not the purpose of this case study to give dentists advice as to whether any particular dental procedure meets the requirements of the practice’s jurisdiction for the obtaining of a patient’s informed consent; nor does the study mean to suggest that any dentist must or should obtain a patient’s informed consent under given circumstances. It is for each dentist before each procedure to determine, both dentally and according to local laws, whether informed consent needs to be obtained and by what means.

“Informed consent” is not a form, even if signed by all parties involved, but rather a process during which a patient is provided with information by which an informed decision can be made. The process, by its very nature, must allow for a patient to ask questions and receive frank responses. A signed “consent form” does not substitute for the give-and-take needed to make a patient an educated consumer; it is merely a written memorialization that such a process took place, and it can serve as an extremely valuable tool in defending dental malpractice claims because it lessens the legitimate arguments by plaintiffs that they were not provided with the information needed for them to be informed.

By comparison, a chart entry, alone, written by the dentist, or worse yet, no entry on the issue at all, will inevitably lead to a litigation battle between dentist and patient as to whether the process took place, with the dentist contending that it did, and the patient asserting that it did not. Such disagreements are left for juries to decide, and realizing that all jurors are, themselves, patients, should serve as guidance as to what they might conclude in the face of no tangible evidence of the patient having been advised.

A patient’s stated willingness to have a procedure performed, with nothing more, cannot be viewed as the obtaining of informed consent. Although such willingness is clearly necessary, it is the end-product of a process, but not the process itself.

Finally, while it was not an issue in this case, it is a frequent issue in claims of paresthesia following block injections whether a 4% solution of a local anesthetic is appropriate for this purpose. There are anecdotal reports and even published papers on both sides of this debate, so without giving advice regarding which anesthetic solutions may be appropriate under a specific set of circumstances, we take this opportunity simply to alert dentists to this increasingly frequent source of malpractice actions, and to suggest that they update their knowledge bases in order to make the soundest patient decisions possible.


The opinions expressed through this post are the opinions of the individual authors and may not reflect the opinions of MedPro Group or any of its individual employees. This document should not be construed as medical or legal advice. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your 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. MedPro Group is the marketing name used to refer to the insurance operations of The Medical Protective Company, Princeton Insurance Company, PLICO, Inc. and MedPro RRG Risk Retention Group. All insurance products are underwritten and administered by these and other Berkshire Hathaway affiliates, including National Fire & Marine Insurance Company. Product availability is based upon business and/or regulatory approval and may differ among companies. © 2021 MedPro Group Inc. All rights reserved.

Malpractice Minute

Dental Case Study: Measure Twice, Cut Once

How Improper Documentation Led to Wrong-Side Surgery

Marc Leffler, DDS, Esq. – January 2022

Background facts

The insured general dentist had been seeing and treating a 29-year-old male patient since the patient was in his teens, by way of infrequent visits over time, with the patient generally appearing only for an occasional check-up presentation, having never had any restorations. On such a visit after a 3-year hiatus, with the patient asymptomatic, the dentist obtained a full mouth series of radiographs, on which he visualized a well-circumscribed, well-demarcated, radiolucent lesion that extended from the roots of teeth #17 and 18 – both of which looked to be partially “eaten away” – posteriorly and inferiorly toward the angle of the mandible, although there was no clinical expansion of the mandible. The dentist was unable to see the entire extent of the lesion, so he immediately referred the patient to a board-certified oral and maxillofacial surgeon for further evaluation and any required treatment; with the patient’s approval, the dentist emailed the patient’s entire set of records and radiographs to the oral surgeon, with all prior radiographs of the area appearing normal.

Following examination the same day, the oral surgeon took a panoramic radiograph that showed the lesion extending to the inferior border, and performed an incisional biopsy of what he stated on a biopsy requisition to be a “right posterior mandible lytic lesion”, which was reported several days later as an odontogenic keratocyst (“OKC”). That report incorrectly repeated the lesion’s location as the posterior right mandible, but the oral surgeon created no documentation of his having realized the error. When the patient returned to the oral surgeon the following day, he was advised that, due to the high rate of recurrence of OKCs, the extent of the lesion required that a complete resection of the mandible from the first bicuspid to the lower third of the ramus be performed, with immediate reconstruction using plating and a bone graft taken from the patient’s iliac crest. No chart entry stated the side of the potential surgery. The patient agreed and hospital surgery was scheduled for two weeks later. The oral surgeon updated the general dentist regarding the diagnosis and plan.

On the day of surgery, the oral surgeon was stuck in a traffic jam, causing him to be late at the hospital. While on route, he called the operating room waiting area and spoke to a nurse there, asking that his patient sign a consent form for right mandibular resection and reconstruction with hip graft and plating; the nurse agreed. The nurse discussed with the patient that he would be obtaining the patient’s signed consent for right side jaw surgery, and completed a proposed consent form listing those as the procedures. Upon reading the form, the patient corrected the nurse, advising him that the lesion was on the left side, so the nurse left the unsigned form for right side surgery in the chart and created a new one for left side surgery, which the patient signed and which was also placed in the chart.

Upon his arrival at the hospital, the surgeon briefly greeted the patient upon passing through the waiting area, and asked that the patient be brought into the operating room while he changed into scrubs. The operating room supervisor pointed out to the oral surgeon that his lateness had backed things up, so he should “move things along”. After quickly changing his clothes, he went to the OR suite, where he signaled to the anesthesiologist to put the patient to sleep while he scrubbed and gowned. The oral surgeon had brought with him only the pathology report and a print-out of the panoramic film, which did not have “L” or “R” markings. As he began to prep the right side for surgery, the nurse pointed out that the patient was definitive that the surgery was to be performed on the left side; the surgeon was adamant that the surgery was to be done on the right side and that the patient was incorrect, pointing to the pathology report describing a right OKC. The nurse did not question further. The oral surgeon performed a block resection from tooth #28 to the right ramus, sacrificing the right inferior alveolar nerve, and reconstructed the site with a bone plate and a graft from the patient’s iliac crest. The surgery proceeded uneventfully from a technical standpoint.

When the patient’s wife saw her husband that evening, she was shaken to see that the surgery had been performed on the wrong side. The patient became upset and distraught for the remainder of his time in the hospital, and refused to see the oral surgeon to be checked, asking instead that another surgeon on staff follow him until discharge. After seeing that other surgeon in the office following discharge, and after adequately recovering from surgery, the patient presented for the identical surgery on the left side, which sacrificed the left inferior alveolar nerve and which required using another reconstruction plate and a graft from the other hip. His facial deformities were quite apparent, and his functioning was grossly deficient, leading to a 40-pound weight loss in the year before implant placement and restorations could begin.

Legal status

The patient and his wife retained well-respected and experienced attorneys to file suit against the oral surgeon (for performing the incorrect surgery), the hospital (for failing to engage in a proper pre-surgical protocol), the oral pathologist (for reporting the OKC as being on the incorrect side), and the general dentist (for having made a referral to an “incompetent” oral surgeon).

Litigation events

Attorneys for the general dentist submitted a motion to the court, seeking dismissal, arguing that their client did everything that the standard of care required, namely making a timely referral to a board-certified specialist; the court agreed and dismissed the general dentist from the case. Similarly, attorneys for the oral pathologist made a corresponding motion, claiming that the standard of care for oral pathologists did not require confirmation of the location of the examined lesion, but instead allowing the pathologist to rely upon the practitioner who performed the biopsy for that information; the court concluded that this was a question of fact for a jury, and kept the pathologist in the case. The claims against the oral surgeon and the hospital were settled for substantial amounts, leading the patient’s attorneys to drop the sole remaining claim against the oral pathologist.

Takeaways

Although the general dentist was ultimately let out of the case, this situation makes clear that any practitioner involved with patient care may be made part of a lawsuit, and be forced to bear all that goes along with being a defendant in a malpractice action. Here, the dentist completely abided by the standard of care, and the court agreed, but an important lesson is to make referrals timely (as was done here) and wisely, considering experience, credentials and background of the practitioner to whom a referral is made.

It is not uncommon for dental professionals to run late and feel pressured to regain control of their daily schedules, whether to appease patients, staff members, or hospital administrators. But that can never serve as an excuse for not taking a “time out” prior to performing anything irreversible, to assure that the patient, treatment location, and procedure are all correct; if there is any doubt at all in this regard, steps must be taken to confirm complete accuracy, even if that means abandoning the patient’s care for that day altogether, and even if that means worsening already-existing schedule delays.

Because OKCs tend not to be expansile from the standpoint of splaying out the cortical plates and making the jaw appear to be “swollen”, the lesion provided no external clue as to which side contained it. It is frequently the case that bony and/or periapical lesions show no external signs of their presence, so practitioners act carefully by assessing all diagnostic factors before suggesting or rendering treatment.

The informed consent process here was relegated by the oral surgeon to a hospital nurse who was unfamiliar with the prior history of events. Best practice guidelines dictate that the practitioner about to perform the procedure personally obtain informed consent, rather than having some other person do it instead. Had the oral surgeon obtained informed consent, there would have been an appropriate forum for patient and doctor to fully come into agreement regarding the details of the surgery about to take place, including the correct location.

The oral surgeon in this case made a critical error in documentation to the oral pathologist, and that error repeated itself at every step following. (This is commonly seen in electronic medical records when incorrect documentation of history, diagnosis or procedure is repeated over and again, because practitioners “cut and paste” from earlier entries to save time.) If the panoramic here had been labelled “L” or “R”, of if the patient had any restorations to differentiate between the two sides, this serious problem might have been avoided, but neither of those situations existed, nor can these types of circumstances be counted on to derail an error in the making. In the end, the negligence in this case was an easily avoidable mistake, based not upon lack of ability or an incorrect choice between various options or a known risk which came to fruition, but upon failing to assure the correctness of a surgical procedure with permanent effects. Measure twice, cut once.


The opinions expressed through this post are the opinions of the individual authors and may not reflect the opinions of MedPro Group or any of its individual employees. This document should not be construed as medical or legal advice. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your 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. MedPro Group is the marketing name used to refer to the insurance operations of The Medical Protective Company, Princeton Insurance Company, PLICO, Inc. and MedPro RRG Risk Retention Group. All insurance products are underwritten and administered by these and other Berkshire Hathaway affiliates, including National Fire & Marine Insurance Company. Product availability is based upon business and/or regulatory approval and may differ among companies. © 2021 MedPro Group Inc. All rights reserved.

Malpractice Minute

Dentist Relies on Texting to Follow Up With Patient After a Tooth Extraction, Leading to Poor Patient Outcome and Lawsuit

Mario Catalano, DDS, MAGD & Marc Leffler, DDS, Esq. – December 2021

Introduction

Technology has become ubiquitous in almost every aspect of modern living, including how we provide and receive healthcare. Today’s communication capabilities, including various forms of social media and electronic communication, have generally proven positive for healthcare providers; however, certain risks associated with technology must be recognized and avoided.

Texting offers a perfect example of a convenient, but risky technology. Although texting is acceptable in some circumstances, healthcare providers should take certain precautions. This interesting case from the Midwest illustrates how seemingly simple text communications can lead to missteps in care, a poor patient outcome, and liability exposure.

Case Discussion

Dr. M, a recent dental school graduate, joined a large dental group practice and began treating patients assigned to her by senior management. Like most people her age, Dr. M was comfortable with texting as a primary mode of communication, and she incorporated texting into her practice to communicate with her patients.

A 28-year-old male presented to the practice as a new patient, and he was assigned to Dr. M. He complained of pain in the area of the lower left jaw. Oral examination showed pericoronitis overlying a soft tissue impacted tooth. Dr. M prescribed an antibiotic and an antimicrobial mouth rinse, and she scheduled the patient to return in 2 weeks for an extraction.

The following day, Dr. M sent a text message to the patient asking how he was feeling, and he responded that he was improving. Once this texting relationship was established, a personal friendship quickly developed, including socializing outside of the practice.

The patient completed his antibiotic prescription as instructed. When he returned to the practice for the extraction, the tissues overlying the tooth were much less inflamed (although not completely normal), and the site was no longer painful.

Following a proper informed consent process, Dr. M began to extract the tooth. It took longer than she anticipated; the patient’s mouth had to be kept open with a bite block for nearly 50 minutes while Dr. M raised a full thickness flap and removed buccal bone with a bur to gain purchase point access. Postextraction, Dr. M asked the patient to continue with the rinse; however, she did not want to overload him with antibiotics (which had given him bowel distress), so she did not order a second round of antibiotics.

The evening of the surgery, Dr. M sent the patient a text — “How’s it going?” — that included an emoji of praying hands. The patient responded with a laugh emoji, followed a minute later by a sad face emoji and “lots of pain, hard to swallow, can’t open too wide.” Dr. M asked the patient to take a photo of his face and mouth and text it to her. Although the picture did not demonstrate excessive external swelling, it also did not show the intraoral extraction site or the submandibular region. The image was simply a typical frontal face selfie. Dr. M responded with a thumbs up emoji and “Don’t worry, just what I expected.”

The following morning, the patient texted “Wow, this is much worse than I figured. I think I have a fever. No work today for me!” and a thumbs down emoji. Dr. M responded only with a heart emoji and “Hang in there.” Dr. M’s text messages of that following evening and the next morning went unanswered.

The following day, Dr. M received a text from the patient stating “In hospital for surgery on my face to drain infection. Big scar. Ugh!!!” She texted back “OMG, so sorry to hear! You need some company!” and included a smiley face emoji. The patient never again spoke to Dr. M; he ignored her multiple texts and let calls from the office go into voicemail.

The next communication regarding the patient came from his attorney, who requested a complete copy of his dental record, including all text and email messages. Shortly thereafter, Dr. M was served with legal papers alleging malpractice by failing to properly treat postextraction complications — including a life-threatening infection — which resulted in permanent facial scarring. Through his attorney, the patient also filed a complaint with the state board of dentistry.

A defense expert was retained, but he had significant concerns about the technical dentistry; he also had concerns regarding the text communications. Ultimately, the case settled with a payment that compensated the patient for his medical costs, his pain and suffering, and the permanent scarring.

The state board of dentistry concluded that Dr. M had acted unprofessionally, both in relying on texting when the patient’s condition required direct contact, and in allowing her relationship with the patient to become unacceptably personal. She was fined and was required to take continuing education coursework on recordkeeping and HIPAA; this discipline was publicly posted on the board’s website.

Risk Management Considerations

Theodore Passineau, JD, HRM, RPLU, CPHRM, FASHRM

Several missteps — both clinical and nonclinical — can be identified in this case. In terms of clinical issues, the defense expert opined that it may have been wise to delay the extraction a little longer, given that the overlying tissues were less inflamed but still not normal. This was especially true in light of the fact that the patient had experienced considerable improvement and was no longer in discomfort.

The expert also felt that once the extraction had been performed, it would have been appropriate to “cover” the patient with another round of antibiotics. Finally, he felt that, at a minimum, Dr. M should have seen the patient in person once he complained about trismus and difficulty swallowing (clearly the texted selfie was inadequate).

Texting is a convenient method of communication, but it definitely has its limitations. While email can be encrypted fairly easily so that it affords an acceptable level of privacy, the same is not necessarily true with texting. (For more information, see MedPro’s article Ensuring HIPAA Compliance in Text Messaging).

HIPAA requires a significant level of security regarding the communication of protected health information; however, patients can waive this requirement if they wish to communicate by less secure means (such as nonencrypted email or texting). When this is the case, the less secure communication should occur only after the execution of an agreement between the patient and dentist. The agreement should explain the limited confidentiality of such communication and memorialize the patient’s agreement with this waiver of privacy. (See the Sample Agreement to Use a Nonsecure Communication Medium).

As noted above, when the patient’s attorney requested a complete copy of the patient’s dental record, copies of all texts and emails regarding the treatment also were requested. Dentists should expect that such communication will not be protected from the legal discovery process, and they will be required to produce emails, text messages, and other electronic communications related to patients’ care and treatment.

The final issue in this case was the development of a personal relationship between Dr. M and the patient. Generally, boards of medicine and dentistry view such relationships as a violation of professional ethics. Either the personal or the professional relationship should not continue in the presence of the other.

Summary Suggestions

The following suggestions may be beneficial to dentists who are treating or following up with patients remotely:

  • If the patient’s progress takes an unexpected turn at any point, request that the patient return to the office for an in-person assessment.
  • If a patient desires to use unencrypted means of communication, refrain from doing so until the patient has waived their privacy rights in writing.
  • At all times, make sure your communication with the patient is appropriate and professional. In the end, you do not know who may end up reading what you have written.
  • Refrain from maintaining close personal relationships with active patients. Such relationships are almost universally viewed as unethical.

While we all desire to make the provision of dental care as easy and convenient as possible, patient safety and quality of care should not be compromised in the process. When providing care or following up with patients remotely, be sensitive to situations that might indicate a developing problem. In-person care and face-to-face communication are essential when a situation has the potential to deteriorate.  Finally, having a friendly rapport with patients is great, but dentists also should maintain professional boundaries at all times for the protection of everyone.


The opinions expressed through this post are the opinions of the individual authors and may not reflect the opinions of MedPro Group or any of its individual employees. This document should not be construed as medical or legal advice. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your 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. MedPro Group is the marketing name used to refer to the insurance operations of The Medical Protective Company, Princeton Insurance Company, PLICO, Inc. and MedPro RRG Risk Retention Group. All insurance products are underwritten and administered by these and other Berkshire Hathaway affiliates, including National Fire & Marine Insurance Company. Product availability is based upon business and/or regulatory approval and may differ among companies. © 2021 MedPro Group Inc. All rights reserved.

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.


The opinions expressed through this post are the opinions of the individual authors and may not reflect the opinions of MedPro Group or any of its individual employees. This document should not be construed as medical or legal advice. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your 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. MedPro Group is the marketing name used to refer to the insurance operations of The Medical Protective Company, Princeton Insurance Company, PLICO, Inc. and MedPro RRG Risk Retention Group. All insurance products are underwritten and administered by these and other Berkshire Hathaway affiliates, including National Fire & Marine Insurance Company. Product availability is based upon business and/or regulatory approval and may differ among companies. © 2021 MedPro Group Inc. All rights reserved.

Malpractice Minute

Dentist Misjudges Bone Height During Implant Placement, Resulting in Damage to the Inferior Alveolar Nerve; Malpractice Lawsuit Follows

Mario Catalano, DDS, MAGD & Marc Leffler, DDS, Esq. – July 2021

Introduction

Every new dentist faces the same dilemma: there is no replacement for experience. As new dentists settle into practice, hopefully they understand their own limitations, as well as the limitations of the techniques and equipment they use in practice. Adopting a conservative approach, especially in one’s early days of practice, may be beneficial.

However, the practice of dentistry is dynamic. The seasoned as well as the new practitioner should not just settle into a certain way of doing things, while ignoring the inevitable changes in the standard of care. As new knowledge and techniques become available, the dentist must consider whether and when it is appropriate to incorporate them into one’s practice. However, that balance between currency and credibility is not always easy to maintain.

Case Discussion
Dr. C maintained a general dental practice that focused heavily on dental implants (both placement and restoration) and the use of lasers to treat various oral conditions. Dr. C had recently hired Dr. K, a recent dental school graduate, as an associate. Because of the practice’s emphasis, Dr. K was sent to several weekend courses on these techniques and Dr. C mentored him as he began practice.

A 51-year-old woman presented to the practice as a new patient, wishing to explore her options regarding her missing tooth number 19. The case was assigned to Dr. K, who began by taking a set of full mouth X-rays and conducting a thorough oral examination. Dr. K’s reading of the X-rays indicated there was 9 mm of bone superior to the inferior alveolar canal (IAC). Choosing to be cautious, Dr. K suggested to the patient the options of either an 8 mm implant or a traditional 3-unit bridge. Following a thorough discussion of the recognized risks and expected benefits of each option, the patient opted for the implant. Because this was a single, apparently uncomplicated implant case, Dr. C decided Dr. K should handle it.

On the day of surgery, the patient signed an appropriate informed consent form that reiterated the risks and benefits previously discussed, including the possibility of inferior alveolar nerve (IAN) paresthesia. Dr. K also assured the patient that the 1 mm margin allowed for between the implant depth and the IAN canal should provide a “safety zone” to account for any discrepancies between the X-ray and the actual bony structure.

After the induction of local anesthesia, Dr. K began the series of sequential osteotomies for implant placement. During this process, Dr. K suddenly felt a decrease in resistance to the drilling, which he attributed to poor bone quality. He proceeded with the preparation and completed the implant placement.

He then reviewed the case with Dr. C, including the lack of resistance he thought he felt. Dr. C suggested a postsurgical X-ray, which indicated that the implant had invaded the IAN canal. This finding explained the lack of resistance.

The patient was informed of what had transpired, and the implant was immediately removed and bone graft material was placed at the osteotomy site. Dr. K explained that the IAN would likely be numb for a period of time. He also recommended to commence treatment of the nerve with low level laser therapy (LLLT) to stimulate healing and restore function (LLLT is not Food and Drug Administration [FDA]-approved for this application). The patient consented, and LLLT treatment was commenced that day.

Dr. K followed the patient closely over the next 18 months, providing approximately 30 LLLT treatments and documenting his subjective assessment of slight improvement after each treatment. However, Dr. K never conducted any nerve mapping or other objective measurement of nerve function.

Eventually, the patient became dissatisfied with her progress and sought a second opinion from an oral and maxillofacial surgeon (OMS). The surgeon indicated that the therapeutic window had passed and little could be done to improve her current condition. She also noted that X-rays showed bone fragments close to the IAN.

The patient sued both dentists charging that they had prepared for the original procedure improperly (by failing to take a cone-beam computed tomography [CBCT]), performed the procedure improperly (by using an implant too long), and failed to appropriately refer her to an OMS or neurologist in a timely manner, thereby preventing her benefiting from prompt remedial treatment.

Several potential defense experts reviewed the case for the doctors’ insurance carrier; however, none of them could support the care. Additionally, the expert reviews of this case questioned the appropriateness of the immediate bone grafting after the implant was removed. The case against both doctors was settled by a payment to the patient.

Risk Management Considerations

Theodore Passineau, JD, HRM, RPLU, CPHRM, FASHRM

This case provides an opportunity to discuss the dynamic nature of the practice of dentistry from two perspectives: the evolution of currently performed procedures and the introduction of new therapeutic modalities.

The limitations of radiographs have long been recognized. As CBCT has become more available and less expensive, its use as part of the implant placement process has become more widely accepted, especially when placement will be near the IAN or maxillary sinus. When the use of CBCT becomes the standard of care is difficult to say, but the dentist needs to consider it in all appropriate cases.

The use of any unapproved therapy also requires careful consideration. While the off-label use of medications or the use of not-yet-FDA-approved implants is (in some cases) within the standard of care in medicine, when it is done, the patient must be very thoroughly counseled and informed that the therapy is not approved by FDA. This advisement is accomplished through the informed consent process.

Whatever treatment is rendered, the dentist (however long he or she has been practicing) must be fully competent to perform the procedure and manage any reasonably anticipated complications. A savvy dentist knows and accepts her or his limitations. If the case starts to “go off the rail,” an early referral to someone with appropriate expertise is likely to inure to the patient’s benefit, and hopefully will minimize the referring dentist’s potential professional liability exposure. Along the way, all dentists participating in a patient’s care should take occasional “timeouts” to assess whether the case is progressing as it should.

Informed consent to treatment was not an issue in this case; however, it is important to understand what informed consent is and isn’t. Informed consent is when the patient is educated about the recognized risks, expected benefits, and reasonable alternatives to the proposed treatment so that he or she can make an informed decision about whether to proceed with treatment. In consenting, patients are assuming the risks that have been explained to them; however, they are never consenting to care below the standard of care.

Summary Suggestions
The following suggestions may be useful when providing higher risk or unconventional dental treatment:

  • Clinical competency is a must. If the dentist is not completely familiar with the condition, its treatment, and the possible complications, he or she should promptly refer the case to a provider with more specific expertise to address treatment needs or complications.
  • Clinical competency is not a static state. Dentists must devote sufficient time and attention to completing continuing dental education (CDE) and other information that will keep them current with the state of practice.
  • If an experimental or unapproved treatment is proposed, the dentist must clearly explain the experimental or unproven nature of the procedure to the patient as part of the informed consent process.

Conclusion
Because of ongoing research and development, the accuracy, efficiency, and efficacy of dentistry has never been at a higher level. However, it remains an inexact science. New potential or actual risks may emerge with every new product or technique. So, dentists should continually increase their knowledge, skill, and attention to detail in response to new developments.

Legal Case

The Injuries That Weren’t

Rawle & Henderson LLP, Marc R. Leffler, Esq., Partner,  William S. Spiegel, Esq., Partner

In order to prove a case in dental malpractice, a plaintiff must demonstrate that there was negligence on the part of the dentist which directly caused, or was at least a substantial factor in causing, an injury or injuries. If any of those components is missing, the claim cannot stand; in other words, if there is no improper treatment, or if there are no demonstrable injuries, or if there is no connection between the treatment and the injuries, the dentist will be successful in defense.

Facts
A 45-year-old woman had been having pain associated with her lower right third molar (#32) for nearly a week; she had previously experienced the same problem over the years, but the pain resolved after a few days after an uptick in her oral hygiene. But this time was different. So, she went to her dentist, Dr. A, to complain, leading to a panoramic radiograph which showed the tooth to be partially impacted with a distal bony defect present on tooth #31, which was confirmed on clinical examination. Dr. A believed that extraction was the best treatment, given the history and the patient’s age; the patient was so uncomfortable that she was happy to hear that proposed solution.

Dr. A had spent several years working in hospitals, so he was well experienced with extractions of this type, and extractions became a regular part of his private practice. What was clear radiographically was the proximity of the root apices to the inferior alveolar canal, so the dentist carefully explained the potential for temporary, or even permanent, loss or alteration of feeling to the areas innervated by the inferior alveolar nerve. The patient was then presented with a detailed informed consent form, which she signed and dated before any aspect of treatment began. Later on, the patient acknowledged having been fully advised of all risks associated with the procedure, as well as viable options, so her initial case claim of lack of informed consent was dismissed by the court early on.

Under local anesthesia, tooth #32 was surgically extracted, seemingly without complication. During the 20-minute procedure, a bite block was placed on the contralateral occlusal surfaces to keep the masticatory muscles comfortable and to reduce the chance of TMJ injury. A silk suture was placed, post-extraction instructions were provided (including that she should refrain from smoking), and a prescription for analgesics was given.

On the second post-operative day, the patient experienced an increase in pain, so she called the dentist’s office; she was asked to come in to be checked, and she did so that afternoon. When Dr. A checked the area, he found a dry socket. So, he asked the patient whether she had been smoking, and she admitted to having done so. The dentist gently debrided the socket, packed the area with dry socket dressing, reiterated the warning against smoking, and told the patient that she should return for dressing changes at least every other day. The patient made no other complaints related to her mouth at that visit.

The patient returned quite often for dressing changes, still making no other complaints; her suture was removed one week after the extraction. During the first month, she presented to the office 12 times for dressing changes. At one of those visits, the dentist took an x-ray, which showed a clean site. At 35 days following the extraction, the patient complained, for the first time, that her lower right lip and chin were numb; she stated that the numbness had been that way since the day of extraction. When asked why she had not said anything about that before, she responded that the pain from the dry socket had been so bad that she simply complained of the most significant thing. Dr. A gently used a sharp explorer to try to determine whether there was any painful response, but the patient stated that she felt nothing on her lower right lip and chin areas when poked with the explorer. The dentist wanted to follow that situation, so he had the patient return for continuing dry socket dressing changes, and after that resolved, once a month. He told the patient that, if she did not have a return of feeling by 6 months after the extraction, she would be referred to an oral surgeon.

At nearly 3 months post-op, she made a new complaint: she was experiencing left side TMJ pain (which she attributed to the bite block used at surgery) which was ongoing since the time of the extraction, and which was making it difficult for her to chew. The dentist thought that it was best that she be sent to an oral surgeon at this point, to address the complaints of both numbness and joint pain. The patient became upset that she was being referred elsewhere, asking why Dr. A would do surgery if he was not able to handle post-surgery problems on his own. The dentist explained that he felt comfortable managing post-surgery problems, but when two arose at once, it would be better to have a specialist involved.

The patient never returned to Dr. A, and she ignored voicemails from his office asking whether she had gone to see an oral surgeon.

Legal Stance
The patient became a plaintiff when the attorney she retained filed a dental malpractice action on her behalf: the suit alleged an improperly performed extraction during which the inferior alveolar nerve was not protected, improper use of a bite block, and the failure to obtain informed consent. These issues of malpractice were claimed to have caused permanent injury to the right inferior alveolar nerve (IAN) and damage to the left TMJ complex. (As is noted above, the informed consent claim dropped out of the case.)

Issues Raised
As we commonly see in cases claiming paresthesia due to extractions, the method of extraction is of paramount importance because a properly performed extraction which led to nerve injury is normally not an adequate foundation for a successful dental malpractice case. A less common claim was raised here, that being that it was improper to place a bite block during the extraction, so as to cause a joint injury.

Discovery
In the state where this suit was brought, there is broad discovery permitted by the courts, meaning that attorneys for both the plaintiff and the defendant dentist are allowed to delve into any issue(s) that might at least reasonably lead to relevant evidence. What this practically results in are the (1) depositions of the plaintiff and defendant, as well as of key non-expert witnesses who can likely shed light on important issues of the case; (2) a physical examination of the plaintiff by a doctor of defense counsel’s choosing, which is limited to the damages claims; and (3) access to a generally wide array of the plaintiff’s dental and medical records, so long as defense counsel can demonstrate to the court that the records sought are not merely for a fishing expedition, but rather for an exploration of what the plaintiff might have reported — or not reported — to her seemingly unrelated medical providers.

Here, the plaintiff’s deposition was not overly helpful in areas beyond the usual inquiry into the plaintiff’s background and her version of the treatment timeline, including interactions with the defendant and others.

However, we had an oral surgeon who was familiar with issues relating to the TMJ and to nerve injuries examine the plaintiff. When challenged with various stimuli to the areas innervated by the IAN, she claimed that she could not feel the right side, but she could feel the left side; of course, this is subjective, so patient truthfulness is an important component of this type of examination (which is why we sometimes forego such examinations in claimed nerve injury cases, based upon how we view the plaintiff’s veracity). Regarding the claim of left-sided TMJ pain, she told our examining oral surgeon, and acted as such when asked to perform opening and lateral movements, that she could only open vertically to 25 mm when asked how wide she could open, but when the oral surgeon asked her (off-the-cuff, so to speak) to open so that he could view the back of the extraction site with a mouth mirror, she opened 45 mm without even a hint of discomfort. More importantly, regarding the left-sided TMJ pain, she claimed to be unable to move laterally, at all, to the left, but freely moved toward the right without any restriction. The written report of this examination was shared with counsel for the plaintiff, as is required.

What the plaintiff did not know is that, due to the functions and pulls of the lateral pterygoid muscles, patients are able to freely move toward the injured side, and prevented from moving to the opposite direction of injured TMJs. Without anyone intentionally setting it, the plaintiff fell into an anatomic trap, proving her to be untruthful regarding her TMJ claim, which immediately raised our awareness that, perhaps, she was also being untruthful about the nerve injury claim.

The plaintiff was a patient who saw doctors quite frequently, so the volume of medical records to be reviewed was enormous. However, we recognized that they could contain very valuable information. Roughly 18 months after the extraction at issue, the plaintiff saw her primary physician for a routine physical and blood studies: therein, her liver function tests were grossly abnormal, so her physician referred her to a hematologist for a work-up, and she went.

Luckily for us, and in conformity with good medical care, the hematologist obtained a complete medical history and conducted a thorough physical exam. In the history, within the section entitled “neurological”, the hematologist noted the history from the plaintiff, which included her statement of “no areas of numbness or altered sensation.” As helpful as that, alone, would have been for our case, during the physical exam, the hematologist conducted a neurological exam, in which it was noted “CNs (cranial nerves) II-XII intact.” Given that the IAN is within the third division of CN V, we knew, from a totally unrelated but authoritative source, that no nerve was injured, at least as of then.

Subsequently, and pursuant to a HIPAA authorization, we spoke with the hematologist. We explained the plaintiff’s claim in the suit and asked whether the notes of the history and physical were accurate. The hematologist responded to the effect of, “I never enter a patient chart note that is not complete and accurate. I see almost every patient with either a medical student or resident also present, so complete history taking, thorough examinations, and accurate chart entries are absolutes.” We made plans to have the hematologist testify at trial, if needed.

Trial
In the lead-up to trial, we explained to the plaintiff’s attorney that we strongly believed that the claimed injuries did not exist. The attorney did not accept our assessment, maintained a settlement demand value which we viewed as exorbitant, and wished to proceed to trial.

At trial, our client testified regarding his professional credentials, including his practice background, and the facts specific to this plaintiff. A key area of questioning against him, which was effective, focused on the concepts that oral surgeons are specifically trained to remove impacted teeth. As compared with general dentists such as he was, they are more familiar with handling complications (which the dentist clearly agreed with, as he had ultimately referred the plaintiff to an oral surgeon after two problems emerged), and despite his experience doing oral surgery, an oral surgeon with more experience might have taken different approaches and precautions to decrease the likelihood of complications. In all candor, plaintiff’s counsel seemed to have impressed the jury on the negligence aspect of the claim.

However, things turned around starkly during the cross-examination of the plaintiff’s expert witness. That expert acknowledged the anatomic and physiologic incongruities associated with the plaintiff’s claimed limitations and abilities relating to her TMJ and its muscular attachments, and essentially admitted that the plaintiff could not have been truthful when reporting her TMJ symptoms. It became even worse for the plaintiff when the expert was confronted with the hematologist’s records, which he had never previously reviewed, and was forced to admit that this unbiased, unrelated practitioner had essentially debunked the plaintiff’s claimed permanent nerve injury, based upon a history from the plaintiff and an examination which took place well after the subject extraction.

The jury quickly returned a verdict in favor of the dentist. One of the jurors, who was interviewed after, said that they completely disbelieved everything about the plaintiff’s claim once her own expert was painted into a corner.

Takeaways
For a plaintiff to win a dental malpractice case, every element of the claim must be met. So, an injury caused by proper treatment will lead to results in favor of the dentist. Of course, the true facts may not always appear from the start, so a deep dive into every aspect of litigation investigation must be undertaken in all cases, not only by the attorneys, but by the expert witnesses as well, because they are the witnesses who are usually the most critical to juries.

Very important from a risk management standpoint is the concept to always practice within your own abilities. Especially in office settings when young employee dentists are pushed to produce, but also in situations where such pressures are not externally placed, we often see litigation arising after dentists perform procedures for which they are not adequately trained, for which they have limited experience, or which they are trying to do as “a favor.”

The opinions expressed through this post are the opinions of the individual authors and may not reflect the opinions of MedPro Group or any of its individual employees. This document should not be construed as medical or legal advice. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your 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.