Malpractice Minute

Background Facts

Having been missing all of his lower left molars for some years, B, generally healthy at age 58, decided that it was about time that he did something about it. He had been hearing from friends about dental implants to treat exactly that problem, so he presented to Dr. N, who regularly placed implants as part of her practice. On the initial visit, Dr. N’s staff member took a panoramic radiograph, following Dr. N’s clinical examination of B’s entire mouth, with a focus on the lower left quadrant. Dr. N then had a discussion with B during which she explained that she believed B to be a good candidate for the placement of 2 implant fixtures, which would later be restored.

B was thrilled to hear that news and stated his desire to move forward. Dr. N explained to B that there were several risks that she wanted to make B aware of, namely potential infection, loss of the implants due to non-integration, pain, swelling, and “possible numbness of the left side of the lower lip and chin areas.” As Dr. N routinely did for all informed consent discussions, she audio-recorded it, and advised B that she was doing so. B continued to be committed to the process and scheduled an appointment for the following week.

When B entered the treatment room and was seated, he was handed a document entitled “informed consent,” which the dental assistant asked him to date and sign, saying that “this is exactly what Dr. N discussed with you last week.” Hearing that, B dated and signed the document without reading it. In reality, the form said, relating to the numbness risk, that “when it occurs, which is rare, it is generally short-lasting, although longer, even permanent, periods of numbness have been reported.” Surgery went forward, seemingly uneventfully.

At the one-week post-operative visit, B reported that he had profound numbness over the left lower lip and chin regions. Dr. N, after looking at a post-placement radiograph that showed close proximity between the implant and inferior alveolar canal, explained the significance of that relationship, but was “certain” that the feeling would be back to normal in a matter of weeks. B continued to see Dr. N, as instructed, on a monthly basis for the next 4 months, but the numbness never changed for the better. B was then lost to follow, with Dr. N receiving a letter from a restorative dentist some three months after that, stating simply that the implants were restored with individual crowns, but providing no reference to numbness.

Legal Action

Then unbeknownst to Dr. N, B consulted with an attorney because, as of more than a year following surgery, he remained numb. The attorney subsequently sent Dr. N a letter requesting copies of all of B’s records, “including any and all recorded conversations.” Dr. N complied.

A process server appeared at Dr. N’s office, handing her a copy of the documents initiating a lawsuit by B against her, claiming that she had failed to obtain B’s informed consent and that she had breached the surgical standard of care, both leading to a permanent nerve injury. Included within the claims language was a statement that neither B nor any reasonable person would have agreed to proceed with the procedures performed had the risk of permanent numbness been explained. Dr. N immediately notified her malpractice carrier, which assigned experienced defense counsel.

Defense counsel met with Dr. N to review the full set of records, including the recorded conversation. Counsel pointed out to Dr. N that she never did mention to B the possibility of permanent numbness, to which she responded that, while that might be true, the informed consent form signed by B did lay that out clearly. Dr. N’s attorney explained to her that informed consent is a process, not just a signed document, through which a back-and-forth takes place between doctor and patient. The discovery process followed, during which, among other things, sworn depositions of B, Dr. N, and Dr. N’s assistant who witnessed the signing of the consent form took place. The assistant confirmed B’s testimony that he did not read the form before signing, after being told that it contained exactly what Dr. N had previously discussed with him.

The now-defendant Dr. N continued to assert to her attorney that the surgery was properly performed, with the numbness – now viewed as permanent – simply a known risk of the implant placement in the absence of negligence. The attorney acknowledged that position and Dr. N’s right to litigate through trial, given her pure consent malpractice insurance policy, which allowed her the option to withhold consent to settle the case. The attorney explained that B’s strongest hand before a jury would likely be Dr. N’s own voiced words which omitted the concept of permanence altogether.

Dr. N prepared diligently for trial with her attorney, realizing over time that she would have a difficult time convincing a jury that B was fully apprised of the risk which came to be, and which she had admitted at her deposition was well known to occur, because she had failed to verbally explain that to B when she had the chance. She agreed that the case would best be settled, and her malpractice carrier agreed as well, offering a settlement amount through counsel which was accepted, thereby ending the case.

Takeaways

Recording informed consent conversations is a classic double-edged sword: when the process is appropriately done, the recording is as solid a piece of defense evidence as can be imagined, but when the process is lacking, the recording cements that deficiency. That is a dichotomy well worth fully considering by practitioners who want to completely memorialize various aspects of their practice interactions. As the adage goes regarding recordkeeping in general, but more forcefully regarding recordings, “your best friend or your worst enemy.” There is simply no room to argue about differing recalls when electronic recall is literally perfect.

Practitioners who do choose to record conversations in their offices are wise to be aware that states have rules governing the lawfulness of recordings, which are divided into jurisdictions that have either “one-party” or “two/all-party” consent to being recorded. In “one-party” states, only one participant in the conversation must agree to it being recorded – meaning that only the person doing the recording need to want it to be done – whereas in “two-party” or “all-party” states, all conversation participants must agree to recording in order for it to be lawful. Practitioners should also appreciate that patients may lawfully record all that goes on in dental offices (putting HIPAA privacy issues of others to the side), without the practitioner’s knowledge, so long as the practice is located in a “one-party” state. With that consideration in mind, it is reasonable to assume that all conversations with patients in those states are being recorded. Proceed with caution!

A very fair question from a practitioner is whether surreptitious recordings by patients in one-party states can be prevented. The answer is that you can try by, for example, posting signs and/or having patients sign documents that state that recordings are not permitted in the dental office due to privacy protection concerns. But given the array and availability of current technology, there is essentially no way to prevent the occasional stealthy patient from doing as they choose.

We point out that we did not explore here the propriety of using solely a panoramic radiograph as the chief diagnostic tool – as compared with a CBCT – despite that debate actively growing. That is left for another day and another case study. But it is not forgotten.

Finally, this case study illustrates the importance of the informed consent process. Even when a procedure is performed without any negligence, either arguably or definitively (if that can ever be concluded), patients can be successful in pursuing a malpractice suit if informed consent was not appropriately obtained in advance of that procedure. The informed consent process makes patients educated consumers by allowing them to agree to or refuse a particular treatment, after being advised of the procedure’s foreseeable risks, benefits, and alternatives. Lawyers for plaintiffs know this quite well, and they are increasingly adding malpractice lawsuit claims of lack of informed consent to claims of negligent care.

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.