Case Study

Anterior Endodontic Treatment Leading to Paresthesia

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.


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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

Teledentistry: A double-edged sword?

Marc Leffler, DDS, Esq., & Mario Catalano, DDS, MAGD

Introduction

During the recent pandemic, and most particularly when dental offices were either closed or open only for true emergencies, “examinations” by many dentists were often restricted to verbal communications by telephone or with a visual assist via computer cameras. A number of states adopted regulations that permit expanded allowances for non-in-person treatments, and some even permit dentists to conduct these patient interactions outside of their states of licensure.

Furthermore, new American Dental Association (ADA) billing codes have been added to account for teledentistry meetings, both directly between dentist and patient, and with a professional dental (hygienist, therapist) intermediary. Statements from various state authorities and dental boards, whether official or not, made it clear that the treatment standards for teledentistry were the same as for in-person dental care with this new trend.

For years, dentists have routinely conducted teledentistry visits with their patients of record, perhaps without even realizing it, by speaking with them to discuss a newly developed complaint or a post-procedure complication, or to refill previously prescribed medications. However, the newly expanded universe of teledentistry has opened to include patients never before seen by the teledentist, which has simultaneously increased the potential for malpractice liability, as the following case from the Southeast demonstrates.

Case Discussion

In March of 2020, a 61-year-old woman who had not seen a dentist for years complained to her friend about something bothering the underside of her tongue near the back of the mouth. She did not know a dentist to consult, and she was hesitant to seek care at a hospital emergency department (ED). She did not wish to subject herself to a high-infection-risk venue, and she knew that hospital facilities and workers were stretched very thin to the point that she might not even be accepted for evaluation or treatment. The friend volunteered that she could contact her own general dentist to see if he could help out, and she did so.

The dentist agreed to visit with the patient over a video conferencing platform, although he had never done that before, and they arranged to “meet” the following day. A remarkably clear picture and sound appeared as they both logged on to their respective computers. The patient was asked whether she had any medical problems or took any medications regularly, and she responded that she did not. She said that she was prone to developing “canker sores” for most of her adult life, and she thought that she had a bothersome one under her tongue now. She wanted to make sure of it because she felt uncomfortable “for about 2 weeks.”

Directly in front of her laptop’s camera, but without any additional ambient lighting, she opened her mouth as wide as possible, pulling her tongue out of the way with a spoon handle to try to show the dentist the area of concern. The dentist found it difficult to visualize anything in the area other than a normal-appearing tongue and lingual gingiva. He was completely unable to see the floor of the patient’s mouth and inferior aspect of her tongue. The dentist said that he could not see anything abnormal but that he was not overly concerned, especially given her history of aphthous ulcers. He advised the patient to rinse often with salt water, apply a topical ointment that was available for order online, and just “tough it out.” The patient followed the instructions, but continued to be bothered in that area.

The first time she saw this dentist in his office was not until July of 2020. Clinical examination revealed that she had a readily apparent erosive lesion at the junction of the inferior aspect of the tongue and the floor of the mouth. The dentist was able to visualize it only by having an assistant retract the tongue and shine a bright office light in the patient’s mouth.

When he referred the patient to an oral surgeon for a biopsy, this was the first time he learned that the patient had a 45-pack-year history of cigarette smoking. He had not asked and she had not offered it during the teledentistry visit. Following receipt of the biopsy report diagnosing squamous cell carcinoma, the oral surgeon referred the patient to a head and neck surgeon, who performed a work-up that established that the patient had Stage III disease. It was treated with ablative surgery and radiation therapy; her prognosis is guarded, and she has significant eating and general function compromises.

Risk Management Considerations

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

As dentistry changes, so must our approaches to risk management. While it is true that dentists have been speaking to and consulting with their patients by telephone for many years, the recent addition of videoconferencing as part of that process has provided new advantages, but new challenges as well. Every dentist knows that visual access to certain parts of the mouth is difficult under the best of circumstances, even in office settings and with overhead, focused lighting; however, patients likely do not realize these limitations.

Therefore, when a teledentistry visit involving videoconferencing platforms takes place, it is incumbent on the dentist to advise the patient from the start that diagnostic and treatment capabilities are restricted, perhaps significantly when compared with in-person assessments. Make sure the patient understands this by putting it in writing and obtaining the patient’s signature before the teledentistry visit. Similarly, the taking of medical, dental, and social histories should be done in the same manner as if the patient were being seen in person. Failing to do so, as was the situation regarding the patient’s smoking history in this case study, might deprive the dentist of information specifically relevant to the complaints expressed, thereby increasing the risk of a missed diagnosis.

Dentists should view the positions of certain jurisdictions regarding standard of care – sometimes with accompanying statutes – very seriously. By understanding that they might be in a circumstance whereby they will be held to the same treatment standards in a teledentistry visit as in an office visit, with the potential for related malpractice and/or state board claims, dentists can and should consider the limits of their patient-related abilities, modify the bounds of teledentistry visits, and thoroughly explain these considerations to these patients.

In the same vein, dentists should document teledentistry visits just as they would an office visit, including advising patients to follow up with them or another dentist in person as soon as possible and reasonable as is customary. Had the dentist in this case study done so, there would have been documentation in the patient’s record indicating the dentist advised the patient of the importance of follow-up, so that if the patient, as here, delayed doing so for 4 months, a stronger and more protective liability stance could have been taken in the event of a lawsuit or board action, in addition to better protecting the patient’s health.

Significant differences exist between teledentistry visits with existing patients versus those who are not patients of record. With the former, the dentist already has a record containing history, treatment, radiographs, and perhaps other diagnostics, so he or she is able to contextualize teledentistry complaints into the entire patient picture. When new patients have teledentistry visits, the dentist has merely a snapshot of the clinical situation, injecting a greater liability risk into the assessment and treatment process. It is true that medicine has been using teledentistry visits for new patients for some time and with success, likely because medical diagnoses are most often based on detailed history taking and assessment of areas, which are typically much easier to visualize than inside the oral cavity.

Finally, we address our thoughts as to how malpractice claims might evolve when the allegations are based on actions or inactions over a video platform. As we have expressed in prior case studies, malpractice claims must be proven through expert testimony asserting opinions of what the particular standard of care means and how it was departed from. With the current form of teledentistry, there is little in the way of experience to be able to consider who is viewed as an expert in such a litigation and what the standard of care specifically is in a given situation. We now have recent input from states in offering statutory guidance that teledentistry standards of care are no different from office standards of care: if that is how courts will interpret and allow evidence to come before them, it should be viewed by the dental community with concern, because examining a patient through a computer camera is far different from doing so in a dental chair.

Summary Suggestions

Dentists providing teledentistry services may find the following tips helpful in preventing liability exposure:

  • If, during a teledentistry visit, the dentist determines that the issues presented go beyond safe and beneficial boundaries, then he or she should refer the patient to a site where in-person care can be provided, such as a hospital ED, a dental school, or another suitable healthcare provider.
  • All patients who may use teledentistry services should be adequately educated regarding its proper use and its limitations. This education is ideally set forth in writing requiring the patient’s signature prior to the teledentistry appointment.
  • When teledentistry is used, the dentist must have an appropriate method of documenting the patient encounter and maintaining HIPAA considerations regarding every aspect of the interaction.
  • During the COVID-19 pandemic, many state boards of dentistry have relaxed their teledentistry regulations to improve access to care. In some of these states, the changes might be permanent, whereas other states may revert to previous standards. It is essential that the dentist who uses teledentistry be knowledgeable of his or her state’s then-current regulations

Conclusion

It is almost certain that communication technology will continue to morph and advance. As a result, it is likely that, going forward, these changes will affect the way teledentistry will be practiced. It will be incumbent on dentists to stay abreast of new developments in the technology and adjust their approach to teledentistry in response to them.


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

Complex Orthodontics Case by a Pediatric Dentist

Marc Leffler, DDS, Esq.

Background Facts

An 11-year-old boy presented with his father to a dental office in which 2 general dentists and a pediatric dentist practiced.  The patient and his father met initially with a general dentist (the practice owner) to address the chief complaint of being “unhappy with how the teeth fit together”.  On examination, the patient had a bimaxillary protrusion with a mixed dentition.  The general dentist saw this as an orthodontics case, so he referred the patient to the pediatric dentist in the office.

The pediatric dentist (we’ll call him Dr. A) had completed his university-based specialty training about 2 years prior, during which he had been involved with 6 orthodontics cases under the supervision of orthodontists.  Since going into private practice, he had completed 2 pediatric orthodontics cases and another was close to conclusion.  None of those cases included the extraction of any teeth for space-gaining purposes.

Dr. A evaluated the patient clinically, as well as with panoramic and lateral cephalometric radiographs, and study models.  He determined that the best treatment was to extract 4 bicuspids and then close the spaces created with full-arch orthodontics.  Dr. A met with both parents and their child to discuss the plan, his view as to why the extractions were necessary as compared with realigning the teeth without extractions, the anticipated treatment time of 18-24 months, with retention following, and the fees.  After considering for 2 weeks what Dr. A had discussed with them, the parents and the patient agreed to proceed.  A written consent form setting all of this out was explained to — and signed by — the patient’s mother.

Dr. A asked the same general dentist (we’ll call him Dr. B) to perform the extractions of the 4 bicuspids, and documented that request clearly in the chart, specifying the reason. The extractions were performed uneventfully.  After the initial post-extraction healing period, the patient returned for Dr. A to place upper and lower bands and brackets, and then wires, so that treatment to reduce the anterior proclination and close the now-edentulous bicuspid spaces could begin.

Several months into treatment, the parents received word from their dental insurance carrier that orthodontics was not covered under their plan.  So, they asked the practice owner for a fee reduction, but he refused after what was later described as a “contentious discussion”.  The parents were so upset that they decided to leave the practice, and took their son to see an orthodontist (we’ll call her Dr. C). 

After performing her own work-up, Dr. C advised the parents that the extraction of the 4 teeth was not necessary, that the proclined upper and lower anterior teeth would best be “verticalized” without closing the edentulous spaces, and that the patient now needed to have implants placed into the 4 extraction sites, to be restored with individual crowns.

The parents contacted Dr. A, asking for copies of their son’s records to be sent to Dr. C, explaining what the orthodontist had told them.  The office sent a copy to Dr. C, the orthodontist, as requested.  However, Dr. A was very upset by the situation, and confronted the practice owner, Dr. B, saying that he felt forced into treating a complex orthodontics case beyond his abilities.  This led to Dr. A resigning his position with animus feelings on both sides.

Dr. C completed the orthodontics case while working in tandem with another dentist who placed and restored 4 implants at the sites where the extracted bicuspids had been.

Legal Action

After consulting with and retaining a seasoned dental malpractice attorney, the mother, on behalf of her son, filed a dental malpractice action against Dr. A.  As would be expected, the claims in the case were that Dr. A was negligent in treating the case with the 4 extractions, and that he engaged in treatment which was beyond his experience and training. 

The damages claims asserted that, due to the patient’s youth and expected lifespan, both the implants and restorations would need to be replaced multiple times over the course of his life.  The plaintiff sought monetary damages to pay for the initial implant and restorative treatment, as well as estimates for the future costs, and pain and suffering associated with having lost 4 permanent teeth and emotional distress in connection with the multiple treatments planned for the future.

Discovery

The records of Dr. C, an experienced orthodontist, were obtained and they included clear statements that the extractions of bicuspids were unnecessary because this was not an extraction case.  The records of the general dentist who placed and restored the implants, Dr. B, included the costs for that work, plus an estimate of costs over the patient’s estimated lifetime for replacing the implants and restorations on them.

Deposition testimony of the patient and his parents was entirely consistent with the events at Dr. A’s office and with the records of Dr. B and Dr. C.  The deposition testimony of Dr. A revealed his limited experience with orthodontics as of the time of treatment, especially with regard to never before handling an extraction case, and also delved into his discussions with the practice owner regarding his having felt pushed into doing treatment beyond his comfort level.  Dr. A, a young and introverted man, felt very intimidated by the process and “dreaded” what a courtroom trial experience would be like.

Case Resolution

Dr. A and his attorneys discussed the various ways the case could play out.  Dr. A confided that he was losing sleep and professional confidence as the case moved along.  His attorneys employed an expert, an orthodontist, who reviewed the records and deposition testimony. The expert believed that Dr. A’s treatment, but more importantly treatment planning, was appropriate, but that Dr. C’s approach would have been an acceptable alternative from the outset as well.  

Considering the entire picture, Dr. A requested that attempts be made to try to settle the case before trial, and that took place in the lead-up to trial, leading to settlement.

Takeaways

With tuition amounts for dental school and non-residency specialty training programs as they are, the vast majority of recent graduates have a significant amount of loan debt, so their ability to obtain and maintain employment is more critical than ever.  Therefore, pressures by employing dentists upon new dentists to perform procedures beyond their abilities can place these new dentists into positions of feeling that they must perform whatever treatment comes their way  (even if beyond their professional abilities) in order to keep their jobs.  This may put dentists into an internal battle, pitting ethical responsibilities to “do no harm” against financial obligations.  It is a conflict without easy answers, but potentially severe repercussions.

That issue aside, this case raises a repeating theme in dentistry: the unabashed “throwing under the bus” of one dentist by another dentist — a concept referred to as “jousting”.  Whether this is done through discussions with patients, in chart entries, by willingness to cooperate with plaintiffs’ attorneys, or all of these, dentists become engaged in this way far more frequently, at least anecdotally, than their colleagues in medicine.  Why this happens is a matter of speculation, but the fact that it does leads to lawsuits, disciplinary complaints, and countless time and money spent in defense. 

The often-referenced dental school quip of “put 10 dentists in the room and you’ll get 10 different opinions” has changed to “if our opinions differ, I’m right and you’re wrong”, which does not promote advancement of the profession, either among dentists alone or when involving patients.  Perhaps elevating discourse in settings such as study clubs, continuing education classes, local dental society meetings, or publications would decrease this growing trend.

Disagreements between patients and dentists – especially about money – are common reasons that patients become plaintiffs.  This case demonstrates one such example, namely the incorrect presumption by the parents that the treatment would be covered by insurance.  While not always possible, obtaining insurance carrier responses to pre-authorization requests, before treatment is begun, will eliminate unknowns and presumptions in terms of dental costs, reducing the risk of financial disputes. 

Related to this is the effect that a refusal on the part of a dentist to reduce fees, or even offer refunds under certain circumstances, can have. In this case, it was that rejected fee reduction request which started the unraveling of the dentist-patient relationship, which in turn led to seeking other care, and ultimately to litigation.  It is not the purpose of this writing to advise dentists as to how to handle financial issues with patients, but it is a factor seen often by malpractice defense counsel.

Settlements of dental malpractice cases occur for various reasons.  Sometimes, treatment is not able to be defended by experts, making settlement the preferred approach.  But even when treatment is defensible, although questionable, pursuing the settlement option may be a matter of a dentist’s desire for resolution, so that practice and personal lives can normalize.  Being involved in a lawsuit as a defendant is stressful and time-consuming, so prevention is the best medicine.


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: Opioid Abuse Following Dental Treatment

Marc Leffler, DDS, Esq. – November 2022

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.

Legal steps taken

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.


Malpractice Minute Contest*

Question

How should a dentist proceed regarding post-operative analgesic prescription when the clinical findings do not coincide with the amount of pain expressed by the patient?

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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: Death following extraction on Coumadinized patient

Marc Leffler, DDS, Esq. – November 2021

INITIAL EVENTS

An experienced general dentist (we’ll call him Dr. A) on the verge of retirement was greeted as he entered his office one morning by a process server who handed him a Summons and Complaint — it alleged that he caused the wrongful death of one of his patients, and had no further details.  At first glance, the dentist had vague recall of the patient whose estate filed the suit, but he did not remember any problems with the patient’s treatment which was over a year earlier.

He immediately pulled the patient’s chart – all handwritten – to review it, in advance of getting in touch with his dental malpractice carrier.  He was soon contacted by the assigned attorney representing him, and they agreed to meet the following day, as strict time limits existed regarding when a response on behalf of the dentist needed to be filed.

The dentist’s attorney contacted the attorney for the plaintiff to try to understand the underlying circumstances.  The plaintiff’s attorney conveyed that this was a simple case: Dr. A had extracted the patient’s tooth, which led to a significant post-operative bleeding event on the day of extraction, which caused the need for emergency transport to a local hospital, where the patient (age 67) died.  The plaintiff’s attorney suggested a quick settlement to save the family a stressful legal process.  As would later be learned, those reported case facts were all true, but critical events – which would guide the entirety of the litigation and its resolution – were left out of the description.

TREATMENT BACKGROUND

Dr. A and his attorney went through the dental chart together to work through the course of treatment.  The patient initially presented several years prior for a check-up.  The dentist, who never had a medical history form as part of his chart, verbally discussed with his new patient any existing medical conditions: he was taking Coumadin due to a history of a “blood clot” (deep vein thrombosis), and metoprolol for hypertension.  Dr. A simply noted “Coumadin and HBP” in the chart for medical history, and called the patient’s physician after determining that the patient needed a deep scaling; the physician said a subsequent dental appointment should be scheduled a week later rather than treating that day. 

Unbeknownst to the dentist, the physician then told his patient to stop taking Coumadin for 4 days prior to that upcoming dental appointment and to obtain a blood test the day prior to it. The patient did exactly that, and his physician advised him to tell Dr. A that he may proceed with the planned procedure, and that the patient should re-start his Coumadin 2 days after the scaling.  The patient reported to Dr. A only that his physician had told him that he may proceed, but he did not mention, nor was he asked about, Coumadin stoppage and testing.  All went forward without complication.

The patient next appeared nearly a year later for what would be his final visit, complaining of a loose, annoying upper first molar. Radiograph and exam demonstrated a periodontally hopeless tooth, so the dentist suggested extraction and the patient agreed.  Dr. A asked the patient how his health was, and he responded – according to Dr. A – that he was doing well, but his blood pressure medication had been changed to better control it.  That was the entirety of the conversation, although the subsequent medical records clearly reveal that he continued to take Coumadin as of that time.

Dr. A routinely extracted tooth #14 and debrided the associated granulation tissue.  He applied gauze pressure to the site and good hemostasis was achieved.  The patient was discharged home with a packet of extra gauze, and instructions to place additional gauze on the site as needed.  The patient’s son, who knew his father was going to the dentist that day, was unable to reach his father that evening, so he drove to his father’s house, to find him conscious but lying on the floor with blood seeping out of his mouth.  An ambulance was called to transport the patient to a local hospital.

At the hospital, the patient was admitted and transfused.  Laboratory values showed that the patient had an elevated prothrombin time, as would be expected in a Coumadinized patient.  A hematologist managed the patient’s anti-coagulation and was able to medically stabilize him within a fairly short time.  However, the laboratory studies also, unfortunately, revealed that the patient had an advanced, aggressive form of leukemia.  After a work-up and a discussion of treatment options, the patient agreed to start a course of chemotherapy, but he stopped it several days later due to side effects that he found intolerable.  Palliative therapy was provided at the hospital, but he soon passed away.

LEGAL STEPS TAKEN

Once defense counsel obtained all relevant medical records and had experts review them, it was clear that Dr. A was negligent in failing to take an adequate medical history at the extraction visit — so as to have ignored the important fact that the patient was taking Coumadin, thereby leading to the bleeding event which hospitalized him.  But, it was equally clear that it was the entirely unrelated leukemia which caused the patient’s death.

Defense counsel contacted the plaintiff’s attorney, asking for discontinuance of the action because there was no good faith basis to maintain a wrongful death claim.  Plaintiff’s counsel argued that it was the dentist’s negligence which put him in the hospital due to uncontrolled bleeding, but the dentist’s attorney reminded him that the only claim was for wrongful death, which was not caused by the dentist, and that the statute of limitations had expired as to any potential bleeding-related claim, thereby precluding its addition at that point.  Ultimately, the plaintiff’s attorney relented, and discontinued the case.

However, the estate executor and plaintiff – the patient’s son – was upset that Dr. A was not held accountable for his negligent actions, so he filed a disciplinary complaint with the State.  Disciplinary bodies, unlike courts in malpractice litigation, do not consider what result came of a dentist’s claimed improper actions, but only whether those actions constituted professional (i.e. appropriate) or unprofessional conduct — the latter of which is sanctionable.  In this case, the disciplinary agency determined that Dr. A had acted improperly with regard to his record-keeping, specifically relating to his taking and recording of the patient’s medical history at the extraction visit.  The dentist was given a stayed suspension and a fine, and required to take continuing education classes in the subjects of history taking and dental charting during his next license renewal cycle.

TAKEAWAYS

This case demonstrates the importance of immediate reporting to the malpractice carrier, so that counsel may be immediately assigned — not only for the purpose of filing timely response papers, but to allow counsel to evaluate the lawsuit’s pleadings to assess what the claims specifically are.  Here, defense counsel was able to determine that the sole claim involved a wrongful causing of death, so that the review of the dentist’s chart and the subsequent medical records could be focused toward assessment and defense of the pending legal claims.  Yes, this patient died after dental treatment – albeit well after that treatment, a fact not initially disclosed by plaintiff’s attorney – but it turned out to be unrelated to the dentist’s care. For a valid claim in dental malpractice, there must be negligent treatment which directly caused the injuries claimed.

A common theme explored in legal case studies is the importance of proper record-keeping, which simply cannot be emphasized enough.  In this case, even if Dr. A did appropriately discuss medical history with his patient, he did not record having done so. Therefore, a reasonable inference may be drawn, including by a jury, that what was not recorded did not happen.  While that issue did not play out in this malpractice case scenario, it was the focus of the discipline levied against the dentist. 

Dentists would be well served to present their patients with printed medical history forms, which are then supplemented through a back-and-forth discussion, so nothing of relevance is omitted.  Simply asking a patient, “Are you in good health?”, as is done with surprising frequency, leaves it to the patient to evaluate and report what conditions might be significant. Furthermore, a patient’s failure to disclose on a written form carries far more defense weight before a jury than conflicting stories about what was or was not said.  Similarly, if physician consultations are requested, a written response from the physician, or minimally, a contemporaneously documented conversation between dentist and physician will eliminate issues associated with gaps in patient recall and/or which may confuse a patient.

While the purpose of this case study is not to dictate what actions dentists should or should not take in given situations, it is worth pointing out that it is far from uncommon that dentists are caught in situations which would appropriately differentiate between the initial stoppage of bleeding and the development of a stable clot.  As a general principle, blood initially stops due to the actions of platelets, whereas stable fibrin clots are created after the body later completes a coagulation cascade; drugs such as aspirin and conditions such as thrombocytopenia may interfere with the formation of an initial platelet plug, while medications like Coumadin and conditions like hemophilia interfere with the clotting cascade to inhibit clot formation later.  Here, the hemostasis achieved in Dr. A’s office was attributable to platelets (which are essentially unaffected by Coumadin), but the platelet plug which is normally replaced by a clot was not so replaced in this case, thereby accounting for the delay in the onset of bleeding. 

From a risk management perspective, it is always a good idea to regularly review medical conditions and medications, especially as they arise in treatment circumstances; it is never a problem to consult literature or field experts.

Finally, this case demonstrates the value of open communication and a strong professional relationship between dentist and defense counsel familiar with the subject matters at hand.


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: Who’s in Charge Here?

How a Dental Office’s Receptionist (and Answering Machine) Led to a Lawsuit

Marc Leffler, DDS, Esq. – February 2022

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.


Malpractice Minute Contest*

Question

When is it permissible for a non-dentist office staff member to provide advice to patients?

Submit your answer to the question using the form below! The winning answer will receive a $50 gift card.

Malpractice Minute Contest*

Question

Other than the clinical situation presented here, for what dental procedures might Coumadin be a concern, and how should a general dentist best handle such circumstances?

Submit your answer to the question using the form below! The winning answer will receive a $50 gift card.

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

Down the Hatch!

Swallowed/Aspirated Objects in Dentistry

Marc Leffler, DDS, Esq., & Mario Catalano, DDS, MAGD

Background facts

Dr. H, a pediatric dentist in a rural area, saw a 13-year-old male patient whom she had treated since he was about 5. Over the years, his treatments consisted solely of periodic prophylaxis and a few sealants. At this visit, the patient’s mother recounted that he had been struck on the upper lip with a baseball several months prior. Although the lip had swelled at the time, no dental symptoms had occurred until a few days before the office visit, when tooth 9 — the upper left central incisor — began to hurt.

Dr. H updated the patient’s medical history, gathered more details about the baseball incident, took a periapical radiograph of the upper anterior region, and performed vitality testing of the upper incisors. The symptoms and examination results indicated that tooth 9 needed endodontic treatment. After Dr. H explained the endodontic process and what to expect following it (in terms of restoration and tooth longevity), the patient’s mother agreed to have Dr. H proceed.

Upon receiving the local anesthesia infiltration, the patient squirmed in the chair, but generally tolerated it. However, when Dr. H approached him with a rubber dam and began to place it, the patient became scared and pushed the dentist away. Dr. H explained to him why she needed to place the dam, and then she tried again. The patient continued to push it away and yell that he did not want it in his mouth. Dr. H tried a third time (while administering N2O/O2 by nasal hood), but was still unsuccessful. She then decided to go forward without a dam in place.

The patient became agitated as Dr. H gained access into the pulp, but she was able to complete that step. Once the filing began, the patient responded by moving around, flailing, and yelling. Dr. H lost control of the #10 file in her hand and dropped it into the patient’s mouth, where it traveled toward the oropharynx.

Dr. H firmly told the patient that he needed to stay still as she tried to grab the file with college pliers, but he continued his previous behavior and began coughing incessantly. Dr. H eventually lost sight of the file. She was able to calm the patient by telling him “I’m not doing it anymore,” which allowed her to place suction as far posteriorly as she could. Although the patient’s coughing subsided, Dr. H was unable to locate the file.

The closest hospital was about 40 minutes away, so Dr. H told the patient’s mother to take him to a free-standing medical office down the street. Dr. H did not call ahead to alert the medical office of the patient’s condition or imminent arrival. After a 30-minute wait at the medical office, a chest X-ray was taken that showed a foreign object in the right main bronchus. The physician was unsure about what he saw, so he sent the patient to the hospital and simultaneously emailed a digital version of the film to its emergency department (ED). When the patient arrived at the ED, another chest X-ray was taken that revealed the aspirated dental file in the right lung.

Once an appropriate amount of time had passed to ensure that the patient’s stomach was empty, the on-call pulmonologist performed a bronchoscopy under general anesthesia and retrieved the file. The patient remained in the hospital until the following evening and then regularly followed up with the pulmonologist. He reported shortness of breath, frequent coughing, and chest discomfort for months. The pulmonologist stated that no treatment was indicated and noted that the patient could potentially experience the symptoms indefinitely.

Legal Action

The patient’s family retained an attorney to seek compensation for what the patient had endured and for his ongoing symptoms, which did not seem to be improving. Before filing suit, the plaintiff’s attorney contacted Dr. H’s malpractice insurance carrier to discuss the situation, claiming that Dr. H was negligent in performing endodontics without a rubber dam (especially on a scared child), and in failing to take any other measures to protect against a swallowing or aspiration event.

The plaintiff’s attorney would not agree to any settlement until it could be determined whether the patient’s ongoing symptoms would be long-term or permanent. (The extended statute of limitations for minors in many, if not all, states allows more than ample time to take a “wait-and-see” approach regarding any longstanding effects.) Approximately 1.5 years after the incident, the patient was able to resume normal activities, and he voiced no further issues.

At that point, the plaintiff’s attorney filed a lawsuit. The malpractice insurance carrier obtained Dr. H’s consent to settle the case (an allowance that her policy contained). The plaintiff’s attorney then worked with the carrier’s claims representative to reach a settlement agreement that satisfied the patient’s parents as well as the court, the latter of which is frequently required in cases involving injured minors to ensure that settlement funds are appropriately set aside for the child and that the magnitude of the injuries is fully known to the extent reasonably possible.

Risk Management Considerations

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

The first issue to consider in relation to this case is informed consent, the requirements of which vary among states. Generally, prior to invasive procedures, dentists are obligated to advise a patient (or a minor patient’s parent or legal guardian) of the foreseeable risks of the proposed procedure, its expected benefits, and any reasonable alternatives. This discussion should take place before obtaining consent or refusal to move forward with treatment.

An important consideration in this case is whether aspiration of a dental endodontic file is a risk that is foreseeable — a determination that dentists must decide for themselves. Traditionally, foreseeable risks are viewed as those that are known to occur in the absence of negligence; however, as with many legal concepts, the definition is not precise. Because of this, dentists often are left to determine whether such a pre-procedure warning is appropriate.

From a risk management perspective, providing more information to patients to help them make better decisions is generally recommended. However, obtaining informed consent does not absolve dentists from liability if they fail to comply with the standard of care, and patients cannot “sign away” their rights to have non-negligent treatment.

Another issue in this case was the rubber dam. Many dentists do not use rubber dams during root canal therapy or related procedures due to personal choice, impossibility in placement, or patient intolerance. However, experience shows that plaintiffs can easily find expert witnesses who will testify that the failure to use a rubber dam for endodontics is a departure from the standard of care. Defendant dentists, on the other hand, might face an uphill battle finding credible experts to testify in support of them, especially when no other protective measures were in place to counter the risks of swallowing/aspirating a foreign object or preventing potential infections.

In this case, Dr. H decided to proceed with treatment without a rubber dam in place, rather than deferring treatment until she could take a safer approach. Alternative approaches include pre-procedure sedatives, performing the treatment in a hospital under general anesthesia, performing the treatment in the office with a practitioner who is skilled in sedating or generally anesthetizing children, or employing some other means of mitigating the child’s intolerance.

Dr. H also did not use any other precautions, such as setting up a gauze barrier to catch a foreign object forward of the oropharynx, tying a piece of dental floss through the hole in the file’s handle to assist in easy retrieval should the file slip, or using one of the other protective devices available on the market. As such, Dr. H compromised her initial plan without considering her other options.

A final and important point relates to the personal relationship between dentists and patients — a critical part of dental practice. At a time when the patient and his mother were understandably upset, and the patient was in some degree of distress, they were left to travel to the local medical office and then to the hospital on their own. Had Dr. H or a member of her staff accompanied them, it likely would have had some calming effect, and it certainly would have communicated Dr. H’s concern for her patient. Whether that would have changed the family’s decision to retain an attorney and to proceed as they did cannot be known. However, dentists often can assuage situations when they demonstrate that they care about their patients by regularly communicating with them during treatment periods, especially when problems or complications arise.

Summary Suggestions

The following suggestions may be helpful to dentists seeking to minimize their patients’ risk of a swallowing or aspiration event:

  • Recognize that a variety of foreign objects can be swallowed or aspirated, including implant materials; tooth fragments; orthodontic wires, brackets/bands; crowns; repair materials; and pieces or the entirety of a bur. The potential for foreign object swallowing or aspiration affects nearly all types of dental practitioners.
  • Evaluate all patients to determine their appropriateness for treatment at the time of the procedure. Patients who are sedated and/or under general anesthesia lose their protective pharyngeal reflexes, so particular care should be taken to prevent objects from falling to the back of the mouth.
  • Follow simple safety precautions to prevent the swallowing or aspiration of a bur. First, never reuse single-use burs. These burs are not designed to withstand the temperatures associated with sterilization, which makes them more prone to breakage when they are reused. Second, be sure that the bur is fully seated in the handpiece prior to use and that the handpiece’s gripping mechanism is functioning properly. Run the bur briefly prior to entering the oral cavity, and away from the patient’s face, to make sure that it is not loose.
  • Use retrieval methods to assist in preventing the swallowing or aspiration of a foreign object. If the instrument you are using has a retrieval hole (e.g., on endodontic files and reamers) or a slot (e.g., on implant hand instruments), be sure to place a piece of dental floss through or around it to assist in retrieving the object if it slips. Crowns are smooth and can easily slip out of your fingers, and teeth are known to break during extraction or slip from forceps. Tying floss around crowns and teeth is not viable, so other protective means — such as oropharyngeal gauze barriers or rubber dams (when appropriate) — are critical.
  • Employ alternatives to rubber dams when patients will not tolerate them or other circumstances prevent their use. Understandably, rubber dams make many patients feel claustrophobic, which could result in irrational behavior or a medical emergency.
  • Keep MedPro’s swallowed/aspirated foreign object protocol close at hand in case swallowing or aspiration does occur (see appendix). A prompt and appropriate response to this event can be beneficial in minimizing the degree of injury.

Conclusion

Not all adverse events that occur in the practice of dentistry can be avoided. Yet, events that occur with regularity should be anticipated, and reasonable steps should be taken to prevent them. Similarly, when adverse events do occur, prompt and appropriate responses frequently minimize suboptimal outcomes. As with so many aspects of dental risk management, preparation is the key to the best possible result.

Appendix. Assessment Matrix for Swallowed/Aspirated Foreign Object


Malpractice Minute Contest*

Question

How can a dental practitioner best determine whether a broken bur, which is no longer visualized, has been swallowed, aspirated, or suctioned up?

Submit your answer to the question using the form below! The winning answer will receive a $50 gift card.

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.