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June 6, 2023

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All data is derived from MedPro Group records and calculations; claims data range is 2012-2021 unless otherwise indicated.

A high-risk patient’s request for sedation during an office-based procedure ended in a fatal outcome — and malpractice claims against multiple providers. Learn why proper patient selection, thorough medical assessment, and a safe treatment environment are essential when providing office-based sedation.

Key concepts

Patient dies after office-based sedation
When medical risk factors make treatment unsafe
How communication and preparation breakdowns can lead to risk

Background facts

P was a 59-year-old bus dispatcher who was a long-time patient of Dr. C, a restorative dentist. He had lost many teeth throughout the years, leaving him edentulous on the upper and partially so on the lower. The maxillary full denture was uncomfortable and, quite frankly, embarrassing due to its regularly falling out while eating, while the mandibular partial denture was satisfactory for P. Dr. C wondered aloud at a recall visit whether P might be interested in having an all-on-4 implant/fixed prosthesis to solve his dissatisfaction. P's response was, "I'm open to anything as long as you put me to sleep." Dr. C explained that he, personally, used only local anesthesia, but there was a young, new-to-practice oral surgeon in the area who would probably be willing to come to the office to do the anesthesia while Dr. C did the dentistry. P was fully on board.

When Dr. C called, Dr. M, the oral surgeon, was also happy to do what he referred to as "a deeper level of sedation," and they agreed on a date. "Just make sure the patient has an empty stomach for at least 6 hours." Dr. M met P on the day of treatment for the first time, learning only then about P's medical history and physical status. P was 5'10" tall, weighing 280 pounds, placing him just into the morbidly obese category with a BMI of 40.2. He described that he slept with a CPAP due to sleep-study-confirmed severe obstructive sleep apnea, took oral hypoglycemic medication for type II diabetes (with A1C reported as being in the "7 range"), and an ACE inhibitor and a beta-blocker for blood pressure control. P took none of his medications when he awoke some 2 hours earlier, because Dr. C made sure to tell him “Nothing to eat or drink" that morning.

Dr. M told P that he had not been aware of his medical background and expressed his concern about sedating him in an office with little in the way of trained staff or emergency equipment. P immediately said there was no way he would go through the procedure without being asleep, to which Dr. M said that the most he would do — subject to a discussion with Dr. C — would be to more deeply sedate him at the start so that local anesthesia could be administered, and then maintain him at a lighter sedated level. Dr. M privately explained to Dr. C his real concerns about the safety of any level of sedation for this patient, to which Dr. C responded that there was no other option, and that he would not be pleased if things did not go forward. Dr. M would give an initial IV dose of Propofol, followed by maintenance with Versed and nitrous oxide/oxygen through a nasal hood.

The anesthesia record created by Dr. M classified P as an ASA II, listing his initial BP as 167/92, his oxygen saturation as 93%, a pulse rate of 85 with a sinus rhythm, and 16 respirations per minute. All monitors remained in place as P was moved to a reclined position in the chair so that Dr. C could be ready to give the local anesthesia once the initial medications took effect. Before P could count backwards from 100 to 97, he was asleep and snoring loudly. Dr. M pulled P's mandible forward, which reduced the snoring volume, but the earlier visible chest rise upon inspiration was no longer evident. The O2 saturation dropped to 89, then to 81, and then into the mid-70s, while tachycardia took over with an ever-decreasing blood pressure. Dr. M saw the situation quickly becoming grave, so he asked an assistant to call 911, but Dr. C did not want "to cause a scene," so he told the assistant to wait for a while.

When all vital signs became precipitously worse, to the point of no palpable or electronically visible pulse, paramedics were finally called while Dr. M began CPR. ACLS was not possible due to the lack of drugs and equipment, and no AED was available in the office. An Ambu bag/mask was in its original wrapper, but once taken out, nobody except Dr. M knew how to use it, and he was delivering chest compressions. Paramedics were unable to revive P, despite appropriate efforts, but P was transported to a local hospital, where he was pronounced dead.

Legal action

P's widow was appointed the will-designated executor of P's estate. Her retained attorney quickly gathered medical records and forwarded them to experts the attorney believed would be needed to move a wrongful death case forward. The experts were unanimously critical of both Dr. C and Dr. M, for differing roles, all of which, they opined, directly contributed to P's death.

Among other things, the experts viewed Dr. C as having been negligent in failing to fully advise Dr. M of P's medical conditions, in failing to advise R regarding the taking of his usual medications before treatment, in bringing in an outside practitioner to provide sedation without having an adequate physical setup for doing so (in other words, "captaining a ship destined to likely fail"), in pressuring Dr. M into doing what he expressed he did not feel comfortable doing, and in acting so as to delay paramedics' attempts at resuscitation.

In implicating Dr. M as having been the primary actor to have caused P's death, the experts stated that he had been negligent in performing sedation in an environment that he had not fully checked in advance and which was inadequately stocked and staffed to do so safely, in performing outpatient sedation on a patient who was too medically compromised for that and then misclassifying into a more healthy characterization, in performing sedation without medical clearance, given P's status, in allowing P to be reclined, rather than being in a more upright position, and never correcting the position, in failing to have P's hemodynamic instability maximized prior to the sedation, and in acceding to the pressures of both R and Dr. C.

Pre-suit monetary settlements as to both practitioners were reached, and both were sanctioned by their state Board.

Takeaways

Ideal or not, it is a fact of current practice that dentists, particularly specialists, travel to practices not their own to perform per diem services, often early in their careers, much like Dr. M did here. Standards of care are not lessened, or modified in any way, to reflect practicing in settings that are not on "home turf": patients are entitled to receive the same appropriate levels of care, regardless of where they are treated. The responsibility lies with the visiting doctor to check, in advance, to be certain that the setting is, first and foremost, safe for the patient, for every planned and foreseeable procedure. If not, the most risk-protective solution is to either correct the deficiencies or step away entirely, as much as either might not be the best from a practice-building standpoint.

It is beyond debate that R had a number of significant medical compromises, some of which might be viewed as contraindicating sedation (at least to the degree provided, even by the induction drug), particularly outside of a hospital setting. Once Dr. M was advised of them, albeit on the very eve of the procedure, it was up to him to have taken all necessary associated steps such as: considering medical evaluation, properly reaching an ASA status and making determinations taking that into account, establishing the roles and responsibilities for both him and his co-treater, Dr. C, and, if safety concerns warranted it, deferring care altogether.

While Dr. M delivered the sedation and took all of the clinical steps in that regard and in the lead-up, Dr. C invited all of it, so he might well be imbued with vicarious liability — responsibility for the wrongful or negligent actions of another, here the actions of Dr. M — in addition to his own direct liability for his actions, as suggested by the expert opinions discussed above. Plaintiffs can be successful in malpractice lawsuits by employing concepts of direct liability, vicarious liability, or both.

Not every patient is a candidate for every procedure. That concept certainly applies to sedation. Despite what a patient might want, or even demand, they should not necessarily have it performed, particularly if it is relatively or absolutely contraindicated. As we have said here in prior case studies, and which bears repeating here, patients have an absolute right to refuse any procedure or professional advice, but they should not be permitted to dictate what a practitioner must do: that rarely leads to anyplace good.

Summary of takeaways

Before treating patients, visiting providers must confirm that the treatment environment, staffing, and emergency preparedness meet the standard of care.
Patients with significant medical risk factors require careful evaluation, appropriate risk classification, and, when necessary, adjustments to the treatment plan.
Patient demands should never outweigh safety concerns. Providers must be willing to postpone or decline treatment when risks cannot be appropriately managed.

Note that this case presentation includes circumstances from several different closed cases, in order to demonstrate certain legal and risk management principles, and that identifying facts and personal characteristics were modified to protect identities. The content within is not the original work of MedPro Group but has been published with consent of the author. Nothing contained in this article should be construed as legal, medical, or dental advice. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your personal or business attorney or other professional advisors if you have any questions related to your legal or medical obligations or rights, state or federal laws, contract interpretation, or other legal questions.

In this real-life case study, dentists will see how a billing dispute and incomplete informed consent process escalated into a malpractice lawsuit. Learn why clear communication about treatment risks, accurate coding practices, and thoughtful handling of patient concerns are essential to reducing liability and protecting patient trust.

Key concepts

Dentist sued after a billing dispute and nerve injury
How informed consent gaps can increase malpractice risk
Why accurate coding and patient communication matter

Background facts

For Dr. A, extracting teeth was an everyday part of practice, as was virtually the entire scope of dentistry. In addition to postdoctoral training, she had been performing these procedures for years in a region of the state with no oral surgeons within a 2–3-hour drive. She was a participating provider in several dental insurance plans that were popular among her patients.

One such patient, P, was an 18-year-old high school senior who presented for an annual recall visit, with a new complaint of periodic pain associated with the lower right third molar. Despite P being of majority, his mother accompanied him into the treatment room to see Dr. A. Following a clinical examination, a panoramic film was taken and viewed by Dr. A. Tooth #32 was erupted, had incomplete apex formation, but was still in close radiographic proximity to the inferior alveolar canal. Dr. A assessed the pain to be a function of difficulty in cleansing the area, with inflamed gingivae as a result. She suggested, while pointing to the panoramic, extraction, which she said, "shouldn't be too hard,” although it carried a "slight risk of a nerve injury which could leave P's lower lip and chin numb, and rarely be permanent." This conversation was documented with specificity in the chart. P had heard about impacted wisdom teeth from a few friends, so he asked whether his tooth was impacted. Dr. A replied, "No, it is not.” P wanted to think about it, so he left the office with a sample of an oral rinse and instructions as to how to improve his oral hygiene. A month later, the symptoms persisted, so P's mother called the office to schedule an extraction appointment.

Before having local anesthetic injected, P was handed a paper entitled "consent form,” which he and his mother "briefly read.” The document contained a list of potential risks, including a general statement about possible "loss of sensation.” P signed the document prior to the extraction going forward. Dr. A worked on the tooth for well over an hour, much longer than she had anticipated, cutting out pieces of tooth and trimming away bone using round and fissure burs. P could taste blood, particularly at one point, which caused Dr. A to pack gauze in his mouth. The following day, P awoke to find the right half of his lower lip and chin numb, which he did not find surprising, given the warning beforehand, but so was the right half of his tongue, which was a surprise. At post-op visits, Dr. A assured and re-assured P and his mother that feeling would return to normal — it never did.

Separately, P received a bill for Dr. A's services from her billing office, seeking a co-pay for "#32 7240.” The amount was significant, despite Dr. A's advertised plan participation, so P's mother questioned the office manager as to what all of this meant. The response was that, according to the insurance plan's rules, Dr. A was permitted to charge that amount for fully impacted wisdom teeth, as this was. P's mother replied that Dr. A had specifically advised her and her son that the tooth was not impacted, no less fully so. The office manager spoke with Dr. A, but the answer came back that, because Dr. A had to work so long to remove the tooth, she was not willing to make any adjustments.

P's mother contacted the insurance carrier to explain the situation. The carrier requested a pre-treatment radiograph from Dr. A, based upon which the in-house reviewers concluded that the tooth was not appropriately coded as 7240, but rather should have been 7210 (surgical extraction of erupted tooth). Under the plan provisions, Dr. A was therefore not permitted to charge any co-pay but instead accept the plan payment in full. When the insurer notified Dr. A of that, with a copy sent to P's mother (whose employer provided the coverage), Dr. A was steadfast that she was entitled to the amount billed and would send P to collection if she was not paid. P's mother did pay the claimed balance, but the carrier dropped Dr. A from the panel due to what it referenced as "upcoding resulting in excessive billing.”

Legal action

P had slowly been adapting to the lip, chin, and tongue numbness, but his mother remained upset about the principle of billing her son and threatening a collection action, so she contacted an attorney. The attorney was not very familiar with dentistry in any legal regard, so he reached out to his own dentist, with a copy of Dr. A's records that he had been provided, to help him interpret what was going on. The dentist agreed with the insurance company's position that the extraction had been inappropriately upcoded, but perhaps more importantly that it was clear from the records that, while P had been warned of the possibility of an inferior alveolar nerve injury and its effects, he had not been told anything about tongue numbness, which came from an injury to an entirely different nerve branch and which should have been avoided if proper technique had been employed.

The attorney initiated a lawsuit against Dr. A, asserting lack of informed consent relating to the lingual nerve injury, dental malpractice regarding the causing of the lingual nerve injury, and breach of contract leading to the improperly billed (and collected) co-pay amount. The defense attorneys assigned to Dr. A by her malpractice carrier reviewed the case with their client and advised her that they would seek expert opinion as to the substance of the informed consent and malpractice claims, but that she would not be covered for the breach of contract claim, per a clearly stated policy exclusion.

The expert retained by Dr. A's counsel was provisionally willing to present a defense as to the malpractice claim regarding her having negligently caused the tongue numbness, but that position would need to be re-evaluated following her deposition testimony. However, there was no evidence in the record to demonstrate that she had provided any warning of a potential lingual nerve injury and its impacts. The defense expert did not see a pathway to successfully defend the claim of lack of informed consent. A second expert reviewer reached the same conclusion.

Dr. A's attorneys had a candid discussion with her. Even if the malpractice claim could likely be effectively defended, the lack of informed consent claim could not. So, P would be entitled to a monetary award regardless of which, or both, of the claims went P's way in the eyes of a jury. Dr. A agreed to have her attorneys seek to settle the claim, to be paid by the malpractice carrier, which they did. As part of the settlement agreement, Dr. A would personally return to P the amount his mother paid her for the co-pay.

Takeaways

While it is impossible to know whether P would have sought an attorney at some point to file an action on his behalf based upon the substantive dental issues, it is quite clear that the issue which drove the initial attorney involvement was the billed, and eventually paid, co-pay amount. There is then perhaps a bit of irony that the money that Dr. A was unwilling to waive directly led to a settled malpractice claim, but that insisted-upon co-pay not only started the legal action steps but was also ultimately paid by Dr. A out-of-pocket. Dr. A made the decision to demand a disputed amount of money, and that decision likely cost her far more — particularly with her being dropped from a panel — than had she acquiesced in the first place. It is not our role here to advise dentists as to whether they should fervently go after unpaid, disputed fees. Instead, we demonstrate a situation where doing so ended up causing more harm than benefit. Food for thought.

Experience teaches that lay jurors might not always understand scientific, dental facts, sometimes making their determinations counter to what experts and attorneys anticipate. On the other hand, issues relating to overbilling or upcoding are relatively straightforward for plaintiffs' attorneys to explain to jurors, and simple for them to understand. At times, jurors might put all else aside and render a verdict for a plaintiff if they do not see the defendant-dentist as having been honest. Such is a version of jury nullification, with the jury members substituting what they deem critical in place of what the law says is critical. Taking subjectivity of that type out of the hands of juries increases a defendant's chances for success.

This case study exemplifies how the trigger for a patient seeking legal counsel might have nothing at all to do with the quality of dentistry. Yes, dentistry is complex, and there is an ever-present unpredictability factor, so ideal results do not happen with every procedure, with every patient. What need not be complex are matters over which dentists and their staff members have full control — such matters can virtually always be taken out of the equation as to what starts the legal ball rolling.

Finally, we briefly address the coding of procedures for billing purposes. The ADA and perhaps other associations provide numerical codes for dental procedures, which state the procedure performed and which often serve as the basis for which payment is sought and made. With few exceptions — such as 7241 for full impactions with unusual surgical complications, or time under sedation/general anesthesia, as examples — procedure codes do not take into account the length of time required to complete or the difficulty in doing so. To upcode to a procedure not actually performed, for a higher fee, is to invite a host of problems, including the initiation of a malpractice lawsuit or Dental Board complaint.

Summary of takeaways

A signed consent form alone is not enough — patients should also be verbally informed of all risks, benefits and alternatives associated with a procedure, by way of back and forth conversations, and those discussions should be thoroughly documented.
Billing disputes and inaccurate procedure coding can damage patient trust and may become the catalyst for malpractice claims.
Upcoding procedures can result in payer disputes, loss of network participation, regulatory concerns, and increased legal exposure.

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Dentists will learn how sedation missteps can lead to a malpractice claim and Dental Board action. This case highlights why understanding state sedation requirements, assessing patient risk, and preparing for emergencies are essential to managing malpractice risk.

Key concepts

Dentist sued after unpermitted sedation led to a medical emergency
Dental Board action tied to state sedation permit requirements
Why patient risk factors matter before providing sedation

Underlying facts

K was a 47-year-old man, who has been an asthmatic for all of his life. His medication regimen has changed over the years — to include, at times, corticosteroids, biologics, and rescue inhalers. At the time of his subject series of visits with Dr. F, K's long-time general dentist, he reported taking daily steroids and an occasional need for the inhaler, with asthmatic flare-ups not uncommon. K had skipped seeing any dentist for some time, so Dr. F found 3 carious lesions in the left posterior for which endodontic care was indicated, and he advised his patient of exactly that.

For some reason, K explained, he had developed a fear of dentistry, the reason he had stayed away, and the prospect of root canal therapy, in 3 teeth, was daunting. Dr. F told his patient that, while he does not often do so, he would prescribe an oral sedative to be taken shortly before each of the 3 procedures, as an adjunct to nitrous oxide/oxygen ("laughing gas") given through a nasal hood. K agreed to try that approach, and filled the prescription given to him.

Just before being driven to the dental office on a relatively humid day by his young adult daughter, K took 2 of the tablets — rather than one, as prescribed — and arrived in a surprisingly relaxed state. When Dr. F peeked into the waiting room, he asked "did you take the medication?" "Yes I did." K was soon seated by Dr. F's assistant, who placed the hood and dialed in N2O/O2 at 5 liters per minute and a 70%/30% ratio, all of which was Dr. F's custom.

When Dr. F entered the treatment room, he briefly made small talk with K before delivering a mandibular block and infiltration. K winced and became visibly upset, which led to his beginning to show difficulty in air exchange. Dr. F asked the assistant for a pulse oximeter, but it could not be located. Dr. F switched the gas flow to 100% oxygen, but he had no means of delivering it with positive pressure. K deteriorated, with his lips becoming bluish, and his respiratory efforts becoming more and more futile. The receptionist heard the commotion, came to see what was happening, and called 911; EMS came 17 minutes later, by which time K was breathing poorly and minimally conscious. With telephone instructions from an emergency department physician, a paramedic started an IV line and injected a muscle relaxant while an EMT squeezed oxygen through an Ambu bag, slowly raising the O2 saturation from 73% to 92%.

K was transported to the hospital, where he was admitted for 4 days, undergoing a complete pulmonology work-up and medication regimen modification. K was left with large ambulance and hospital bills, for which no health insurance was in place, owing to his being new to his current job, which he could not attend for another 2 weeks, unpaid.

Legal steps taken

Intimidated by the amount of money he owed, K sought legal advice, and was counseled that suing Dr. F might cover his expenses and lost earnings, as well as money to compensate him for his physical and emotional injuries. The newly retained attorney obtained copies of the records from Dr. F, the ambulance, and the hospital, and sent them to dental and internal medicine experts for their input. The dental expert knew that dentists in that State were required to obtain a permit for providing sedation at any level, including orally, with predicates to obtaining the permit being (1) an office assessment by 2 dentists from the State Dental Board, to assure that resuscitation equipment and drugs were available and functional, as well as (2) basic life support certification for the dentist and at least 1 present staff member (or ACLS for the dentist for deeper levels of sedation), and (3) doctoral or post-doctoral training in sedation techniques. Dr. F was not aware of any of these requirements, so, as the dental expert found on publicly available platforms, Dr. F had never applied for a permit; in fact, neither he nor any staff member was current with BLS certification.

In addition to filing a dental malpractice lawsuit against Dr. F, K, with his lawyer's help, filed a Dental Board complaint. In his response to the complaint, one of the arguments posed by the attorneys provided to Dr. F by his malpractice insurer was that Dr. F had not intended to do more than simply "take the edge off,” and it was K's own action, by taking a higher medication dose than prescribed, that led to a deeper level of sedation and the apparent laryngospasm that flowed from that. The Board was unmoved: the statute set out strict requirements, for any level of sedation, with the dose provided by Dr. F falling into that category; Dr. F had violated that statute. The Board levied monetary sanctions and a stayed 6-month suspension from practice.

The Board's findings and actions, which would likely make their way to a trial jury in that jurisdiction, made the malpractice defense a steep uphill battle. A settlement followed, compensating K for both economic (medical costs, lost income) and non-economic ("pain and suffering") damages.

Takeaways

The old adage that "ignorance of the law is no excuse" clearly applies here. While dentists are not expected to have the degree of understanding of laws that lawyers do, they are expected to know and abide by the parameters of their State's Dental Practice Act; there is simply no getting around that. With this is mind, had the case proceeded to trial, it is foreseeable to believe that a legal principle known as negligence per se would have come into play: in basic terms, when a person violates a statute which is intended to protect the public safety, and that violation causes an injury, there is essentially a presumption of negligence/malpractice. Here, Dr. F's failure to obtain the needed permit is quite readily argued to have caused K's injuries, based upon the facts that his training was inadequate and his resuscitative inventory was lacking, leading directly to the inability to protect K's safety. Legally, negligence per se provides what amounts to a short cut for plaintiffs, yet one which is avoidable.

Readers might wonder whether K's own improper action, namely taking twice the prescribed dose, could have alleviated Dr. F's liability, or at least a portion of it. The answer is maybe. When a settlement is made, as it was here, all of the potential legal arguments go away. But if the litigation had proceeded, and depending upon the State and locality involved, a jury might have been able to consider K's impropriety and reduce, or even possibly eliminate, Dr. F's liability. Taking that approach at trial is viewed by some lawyers as risky because jurors might see it as trying to blame the victim; but that does not mean that such a tactic does not ever occur, because it most certainly does. It ends up as a judgment call on trial strategy, left for lawyers to discuss with their clients, with a typical risk-benefit analysis playing a major role.

An issue underlying the facts in this case is the existing medical condition of K, as of the time of the procedure. He was a known, disclosed asthmatic, whose various medication regimens signaled a significant level of disease. Most practitioners would likely agree that such patients pose a higher risk profile when it comes to sedation, to any degree, such that a host of factors need to be considered beyond the "usual.” In terms of strict ASA classification, K would be viewed — based solely on his asthma condition — as a Class II (if the asthma was judged to be well controlled with management of it on an as-needed basis) or Class III (if the asthma was viewed as not being well controlled, with frequent episodes and constant treatment required) patient. Of course, there is subjectivity involved with assigning patients into these groups, but objective assessments ought to be used to guide the conclusion.

Finally, we address a defense that Dr. F raised with the Board, namely the level of sedation that was intended for K, rather than the one achieved. In some States, that difference might be determinative, but in the State of Dr. F's practice, that difference was irrelevant. Either way, it is a universal given that dose X of drug Y will necessarily produce different sedative results in different patients, even if nominally but potentially largely so; dentists are prudent to realize that sedative end points are unpredictable, that patients might become more deeply sedated than intended, that patients might have side effects generally associated with the deeper level, and that the dentist must be appropriately trained and otherwise prepared to handle even low likelihood, but severe, risk manifestations. There is often little room for error when a patient's state of consciousness is altered.

Summary of takeaways

Dentists are expected to know and follow their state’s sedation requirements.
Patient-specific risk factors can increase sedation-related liability.
Sedation outcomes can be unpredictable, so emergency readiness is essential.

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Key concepts

Patient dies after office-based sedation
When medical risk factors make treatment unsafe
How communication and preparation breakdowns can lead to risk

Background facts

Legal action

Pre-suit monetary settlements as to both practitioners were reached, and both were sanctioned by their state Board.

Takeaways

Summary of takeaways

Before treating patients, visiting providers must confirm that the treatment environment, staffing, and emergency preparedness meet the standard of care.
Patients with significant medical risk factors require careful evaluation, appropriate risk classification, and, when necessary, adjustments to the treatment plan.
Patient demands should never outweigh safety concerns. Providers must be willing to postpone or decline treatment when risks cannot be appropriately managed.

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This document does not constitute legal or medical advice and should not be construed as rules or establishing a standard of care. 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/or may differ among companies.