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The Malpractice Minute is a monthly, real-life dental malpractice case study — with risk management tips and insights to help you practice more safely. Learn from others, explore how malpractice issues unfold, and gain valuable tips on how to protect yourself and your patients. After reading the case, put your knowledge to the test with the chance to win $50 by participating in the monthly Malpractice Minute contest.

Canceled Joint Replacement Results from Dentist’s Lack of Awareness

Marc Leffler, DDS, Esq.

Reading time: 8 minutes

Dentists must stay informed on new guidelines regarding patients with planned joint replacement surgeries. In this case study, a dentist performs tooth extractions less than two weeks before the patient’s knee replacement. The orthopedic surgeon cancels the surgery upon learning about the extractions, explaining to the patient that there are new guidelines for the timing of such procedures. The patient complains to the dentist about their inconvenience and lack of awareness, but no legal action is ultimately taken.

Key Concepts

Staying informed on evolving dental guidelines
Understanding protocols for patients with joint replacements
The importance of documentation in dentistry

Background Facts

P knew, from years of being told by various dental professionals, that he needed a number of teeth extracted due to gross decay. He admittedly did not have regular and adequate home oral hygiene habits, often leaving him with plaque build-up throughout his mouth and several areas of calculus, particularly on his lower anterior teeth. With an elective knee replacement surgery coming up in 2 weeks, he thought that this would be a good time to have those teeth extracted, in large part because he had read some online information about knee surgery and the potential for mouth bacteria to spread to that surgical site and lead to knee prosthesis loss.

When Dr. N examined P, clinically and radiographically, she noted 8 teeth in need of extraction, in addition to a long-overdue prophylaxis. P made Dr. N aware of the upcoming knee surgery. She arranged for P to have a cleaning that same day, with the extractions to be completed in 3 days.

The extractions went forward uneventfully, leaving a week-and-a-half before the scheduled orthopedic surgery. P saw Dr. N post-operatively to check the extraction sites, 5 days before the knee was to be treated, and all appeared to be healing within normal limits, although a lone bone spicule was easily removed.

P met with his orthopedic surgeon, Dr. C, in the hospital’s pre-surgical waiting area, where P casually mentioned that he had multiple dental extractions about 10 days prior, and the removal of a “small sliver of bone 5 days ago.” Dr. C immediately canceled the knee replacement surgery and told P to contact his office to reschedule once there would be no further dental intervention in those sites. At P’s request to understand more, Dr. C explained that current guidelines, which had “just taken effect,” included that there be a waiting period between oral surgery procedures and certain elective joint surgeries. Frustrated at the situation – because he had taken time off from work, asked family members to rearrange their own schedules to assist him upon his return home, would now need to redo his pre-operative lab testing, and would have to again go through the stress in anticipation of surgery. P contacted Dr. N’s office, asking to come in immediately.

Dr. N was surprised to see P, expecting that he would have been hospitalized and under his orthopedic surgeon’s care. P angrily explained what had happened, with Dr. N listening intently. Dr. N said that she had been unaware of any protocols in place that would have led Dr. C to cancel surgery for a dental-based reason. Nevertheless, she apologized profusely, but P never returned to see her. P located another dental practitioner, who determined the extraction sites to be completely healed, roughly a month or so later. P underwent successful knee replacement surgery, albeit several months after initially planned, with no complications.

Legal Action

Still upset over the entire episode, P spoke with a cousin who is an attorney, as well as a local medical malpractice lawyer. Both gave him the same advice, namely that, although he had suffered from significant inconvenience due to Dr. N’s lack of knowledge, he had no damages which would reasonably be compensable. The second attorney also pointed out that, even if Dr. N had been aware of the new protocol, the teeth were quite likely in need of extraction before the joint surgery anyway, so the orthopedist would have postponed the procedure in any event. All of P’s frustrations would have, therefore, been essentially the same.

Understanding that suing Dr. N would only be able to happen if he represented himself, P sent her a letter requesting copies of his entire chart, and asking her to report the incident to her malpractice carrier, which she did. No further action was ever taken by P.

Takeaways

The “current guidelines” referenced by Dr. C came into effect in late 2024, by way of protocols jointly developed by the American Academy of Orthopedic Surgeons (AAOS), the American Dental Association, and several other organizations. By way of history, the use of antibiotics in association with dental procedures for patients with joint replacements was recommended until as recently as approximately 2012, when the guidance changed to consider discontinuing that practice. The current approach regarding the relationship between dentistry and joint replacements takes antibiotics out of the picture, and instead speaks to the timing of certain dental procedures, both before elective total joint arthroplasty (TJA) and after any TJA. The organizations involved carefully referred to them as guidelines, as compared with standards of care (SOC). But in a litigation setting, it is far from unforeseeable that an expert for a plaintiff might well incorporate the guidelines into their testified-to SOC, if the guidelines were not followed and a negative event ensued.

The new guidelines, briefly stated, are: (1) noninvasive and minimally invasive dental procedures can be performed until the day before elective TJA; (2) dental extractions and other oral surgery procedures should be completed at least 3 weeks before elective TJA (because they can be expected to take up to 3 weeks to heal); and (3) most dental procedures should be delayed – if possible – for 3 months after TJA. The goal, according to the co-chair of the guideline group, is to prevent infections that might emanate from dental procedures, due to bacterial entrance into the bloodstream, which can then attach to the new joint prosthesis, thereby infecting it.

Even though litigation never took place in this case study, it would not be unexpected to imagine that litigation might well have gone forward if the result to P were different. For example, if P had the TJA and then presented to Dr. N 1-2 months later, and if Dr. N had performed the extractions at that time (with both P and Dr. N unaware of the new guidelines), and if the joint prosthesis were then lost to infection due to bacteria commonly found in the mouth, an expert for P, as plaintiff, would be able to make a colorable argument that P suffered as a result of Dr. N not following a published guideline, namely the waiting for 3 months after the TJA to extract the teeth.

A fair reading of the guidelines leaves some room for interpretation, such as what constitutes “noninvasive and minimally invasive dental procedures,” and what dentistry fits under the umbrella of “most dental procedures.” If unclear, a risk-protective approach is to directly involve the orthopedic surgeon, explaining what dentistry is planned, so that the surgeon replacing the joint can have input into the plan of action. In such situations, documentation of those communications is critical, in the event that a lawsuit or Board action were to later arise. A written plan – a letter, email, or text message – from the orthopedist is ideal, but absent that, a detailed, contemporaneous entry by the dentist/oral surgeon into the patient’s chart will serve as a solid, if not perfect, memorialization.

With dentistry and medicine fronts expanding at a fast pace, and with technology fueling that expansion, sometimes seemingly overnight, the burdens upon dental professionals to stay up to date about all aspects of patient care can be daunting. But that is exactly what is required to practice within the standard of care. The fact that a dentist might not be aware of very recent, yet relevant, changes that directly affect their practice will not serve to excuse any lapses that occur as a result. An approach looked at today as up-to-date might be viewed as old-fashioned and outdated tomorrow. Here, although Dr. N was made aware of P’s upcoming knee replacement surgery, she was not aware of the potential impact of her planned dental treatment upon that surgery. That directly and negatively affected P, but fortunately, in not very significant ways.

A question to consider is whether the patient, P, bears any responsibility for the events in this case, particularly by allowing his teeth to fall into such disrepair, all at his own hand, and for waiting until the virtual eve of knee surgery before seeking to address his dental problems. States vary in their handling of this type of issue during the course of litigation. But even when a particular jurisdiction allows for claims by the defendant against the plaintiff that might greatly reduce or completely eliminate monetary compensation, it becomes a strategic question for defense counsel (and the dentist’s malpractice carrier) as to whether there is value in going down that road, with the specter of the potential for a jury to be angered by the attempt to “blame the victim.” Litigation is a process that includes facts, law, strategy, ethics, and assessments of human nature, complex and intellectually stimulating.

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.

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In dental practice, dealing with hard-to-please patients can be a challenge, but it’s important to approach them with care. In this case study, a dentist dismisses a difficult patient without taking the proper steps required by their state. In turn, the patient brings a malpractice claim and board complaint against the dentist.

Key Concepts

Handling difficult patients in dental practice
How jousting can lead to malpractice claims
Patient dismissal vs. abandonment

Underlying facts

V, a woman in her mid-50s, had been a patient in Dr. K's office for less than a year, having left her prior dentist because, as she described, they "simply couldn't get along with each other." When V first presented, Dr. K did not ask for any details about the issues with the prior dentist. The initial visits with Dr. K were routine, consisting of examination, radiographs, and prophylaxis, but no further treatment was required. More recently, V was struck in the face and upper anterior teeth with a tennis racket by her doubles partner. She came straight to see Dr. K, who determined that the fractures in teeth #8 and #9 warranted full coverage restorations after RCTs were completed.

The following week, Dr. K performed endodontic therapy on those teeth, inserted posts and cores, completed crown preparations, impressioned them, and placed temporary crowns. It was shortly after that when Dr. K got a sense as to why V might have split from her prior dentist. Every day over the next week-and-a-half, usually after hours, V called Dr. K on his cell phone, complaining about the aesthetics of the temps; each time, Dr. K explained to his patient that this was only a temporary situation, soon to be replaced by permanent crowns which would be much more cosmetically pleasing. When V presented to have the permanent crowns inserted, she expressed her unhappiness with the shade they had jointly chosen. Still, Dr. K encouraged her to "live with them" for a while, temporarily cemented, and then see how she felt.

The same telephone pattern continued, so Dr. K asked V to come into the office so that they could choose a new shade with even more of her input than originally. They agreed on a shade so that Dr. K could have his dental lab strip the porcelain and redo them with the new shade selected; Dr. K replaced the temporary crowns until the time when the "new" permanent crowns would be ready. V contacted Dr. K repeatedly, again complaining about how she "hated" the look of the temporary crowns. The new crowns arrived in the office, and Dr. K tried them in V's mouth. Now, she continued to complain about the "unnatural" shade, but she also did not like the crown shape. Dr. K asked his lab to, once again, redo the porcelain component with the newest chosen shade and also requested modification of the emergence profiles.

The third set of crowns were still unsatisfactory to V's eye, and she made that very clear to Dr. K. At a loss for how he could please his patient, Dr. K told V that he would leave the newest crowns temporarily cemented in place, but he would not continue to treat her; he followed the verbal dismissal with an email, in which he provided little detail as to why he discharged her or what she should do next.

V was able to find a new dentist, Dr. A, quickly. Dr. A commented to V that he thought the shade was far from ideal, and he was also quite critical of the shape and marginal integrity of Dr. K's crowns. Dr. A agreed to remake the crowns, but his fee would be a burden for V. A payment plan was worked out, with V obtaining yet another set of crowns, now from Dr. A, ultimately stating that "they're OK but not great."

Legal action

With her dissatisfaction growing, V looked into suing Dr. K to recover the additional expenses she paid to Dr. A, but she could not find an attorney willing to take her case. Instead, she filed a case in a local small claims court. She simultaneously filed a complaint with the State Dental Board, claiming that Dr. K had abandoned her as a patient when he dismissed her from his practice before ongoing treatment was completed. When V appeared in small claims court on her own, she was met by counsel for Dr. K, who had been assigned to defend him by his malpractice carrier; per his policy, Dr. K was entitled to defense counsel for malpractice claims, regardless of the level of the court.

V had been unable to convince Dr. A to testify as to treatment below the standard of care on the part of Dr. K, so the small claims court judge dismissed the case and advised V that plaintiffs claiming professional malpractice needed to have expert testimony to support such claims for them to maintain their actions. In response to V's request that the court simply evaluate the records of Dr. A, which demonstrated Dr. A's criticisms of the crowns that Dr. K had made and the need to remake them at her expense, the court stated that allowing a paper file to substitute for expert testimony would be unfair to Dr. K and his counsel because "you can't cross-examine a piece of paper." As they all left the court, Dr. K's counsel advised V that he would be defending Dr. K in the Board action she had filed.

The Dental Board's members, as well as the Board's attorney, interviewed V and Dr. K separately to learn each of their positions. V essentially repeated what she submitted in her initial written complaint. In his defense, Dr. K argued that he concluded after three attempts at crown fabrication and placement that he could not please V, regardless of what he might do. The Board's questioning focused less upon his reasons for dismissal than upon the way he did it.

After subsequent internal deliberations, the Board issued a written decision in which it faulted Dr. K for the inadequacies in his notice to V, citing to Dental Practice Act requirements for patient dismissal, so that it does not amount to abandonment: patients must be notified in writing of a dismissal, the reason(s) for that termination, the dentist's stated willingness to continue to treat the patient for a limited period in the event of dental emergencies, and the dentist's stated willingness to assist the patient in moving further care to another dentist. Because, in the Board's view, Dr. K did not abide by these obligations, his dismissal was deemed an abandonment. While the Board opted against levying a fine or any severe sanctions, they sent Dr. K a letter of reprimand, which would be posted indefinitely on the Board's website.

Takeaways

As a general proposition, but with wide variation, State Boards often act when they view a dentist's actions as constituting professional misconduct – sometimes stated as an ethics breach – although they are not limited in that regard; patient abandonment often fits that bill. Here, Dr. K faced a dilemma because he recognized that he had not yet completed the course of dental care he had begun, while also realizing that he did not believe that he would ever be able to satisfy his patient's stated desires and needs. Looking at the Board's conclusions at face value, there seems to have been an understanding and acceptance of Dr. K's predicament, but his approach to carrying out V's dismissal fell short of the statutory duty, namely failing to take the necessary steps and reducing that to writing for the patient's benefit. In the end, dentists should familiarize themselves, whether on their own or with the assistance of an attorney or their malpractice carrier, as to what their state's requirements are for proper patient dismissal and make certain that they abide by them. The risk of not doing so can result in a Board sanction, even when the basis for such a dismissal was appropriate. It is always necessary to make sure that patients are not harmed, even when releasing them from the practice where they had undergone treatment.

In this case, the subsequent dentist, Dr. A, voiced criticisms about the quality of the care of the prior dentist, Dr. K. That concept is often referred to as jousting, and it is a frequent driver of dental malpractice claims. While it is not uncommon, and not unexpected, that a subsequent treating dentist might look at prior-performed treatment and disagree with certain aspects of it, whether approach or performance itself – and dentists are ethically obligated to notify patients about all existing conditions they find – but how those findings and/or disagreements are expressed to patients can mean the difference between a lawsuit or Board complaint, or neither. The subsequent treating dentist is most often doing a look-back evaluation in a vacuum, without having stood in the prior dentist's shoes at the time treatment was carried out. Here, while Dr. A jousted against Dr. K, he ultimately refused to testify against Dr. K, thereby protecting him from the legal actions taken by a patient whom Dr. A had seen firsthand was a difficult patient to satisfy.

Finally, we briefly address claims brought in small claims courts rather than in traditional trial courts, in which juries are often seated. The rules vary greatly between states and even between jurisdictions within the same state, but it is safe to say that small claims courts usually have somewhat relaxed procedural rules. However, as the judge in this case demonstrated, at least in her courtroom, basic fairness protections would not be sacrificed at the expense of the defendant dentist. Our experience shows, though, that this is not an across-the-board method in small claims courts, so the preparation for defending small claims actions is not a place to take liberties, by sued dentists, their attorneys, and their malpractice carriers, even though the amount of money at issue is lower than in courts of "general jurisdiction."

As a dentist, audio recording the informed consent process can be concerning on several fronts. In this case study, a patient seeks dental implants. The dentist records the informed consent discussion, during which she intends to explain the various risks, particularly permanent numbness over the left lower lip and chin regions, but this is inadvertently missed. On the day of treatment, the patient signs a consent form that describes the risks, but he does not read it. One week post-surgery, the patient reports profound numbness in the expected areas. The patient sues the dentist over a year later for breaching the standard of care and failing to obtain informed consent, claiming that both led to a permanent nerve injury.

Key Concepts

The considerations of audio-recording during patient visits
Recording basics for one- and two-party consent states
Obtaining informed consent by various modalities

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.

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Navigating informed consent with patients showing signs of dementia may prove challenging for dentists. In this case study, an elderly patient with presumed dementia seeks dental implants as a solution for stabilizing her lower denture. Despite her stated objection to implant surgery, and with her adult daughter as healthcare proxy insisting otherwise, the dentist proceeds with surgery, but not before explaining the general risks. The surgery results in osteonecrosis and implant failure, leading the daughter to sue the dentist for negligence on the patient’s behalf.

Key Concepts

Understanding the role of healthcare proxies
Recognizing legal boundaries and seeking counsel
Perceived capacity of patients in informed consent process

Background Facts

S, age 87, presented with her adult daughter, seeking to know whether the placement of implants might make her lower denture more stable in the mouth, perhaps as a snap-on, with the intention of reducing the number of lost dentures at S's assisted living facility's dining hall. S would often remove her denture before meals, due to discomfort while she was eating, and forget to replace it, sometimes forgetting where she had placed it. While S was able to function generally well regarding activities of daily living, she was clearly afflicted with many symptoms of dementia, although no formal diagnosis had ever been made.

S's daughter, B, explained this background to Dr. P while all 3 of them were in the room together. B also explained that she had been designated as her mother's healthcare proxy, vested with the authority to make healthcare decisions in the event of her mother's inability to do so for herself. B showed Dr. P a copy of the healthcare proxy document.

Dr. P examined S's edentulous mandible and the adjacent tissues, both clinically and radiographically. Given the rather atrophic mandible, combined with S's long-term regimen of taking bisphosphonates, Dr. P explained all of the general risks of implants, but also specifically discussed the potential, albeit small, for medication-related osteonecrosis of the jaw with the possibility of a pathologic fracture. Dr. P was mindful to use explanatory language that lay people would understand, as he always did during informed consent discussions. Throughout the discussion process, Dr. P believed, based upon S's involvement, that S fully understood what he was explaining.

S said that she did not want to take the explained risks at her age, so she said she would prefer to simply have a new denture made which would hopefully be better retained during eating. B interjected that her mother was failing to take into account the impact of regular calls she received from the assisted living facility about S frequently misplacing or losing her denture, so B insisted that the implant plan go forward, telling Dr. P that her mother does not any longer know what is best for herself. It would be B's determination that would prevail. B signed a surgical consent form in her capacity as healthcare proxy, despite her mother's objections.

The following week, S returned to the office, driven there by B, with S repeatedly saying that she did not want any surgery. B said to her mother, in Dr. P's presence, "you don't know what's best for yourself, so just sit there and let the doctor do his job." The surgery went forward, seemingly uneventfully.

S's healing was anything but uneventful, with repeated infections developing, requiring multiple debridements. One tissue specimen which was histologically examined was read as osteonecrosis. While the mandible never fractured, all of the implants placed failed, so S was ultimately treated with a new complete denture, but with less bone than she initially had, leading to even worse retention.

Legal Action

Without S's knowledge, B interviewed several attorneys, with the hope of finding one who would sue Dr. P for malpractice. Once she found a willing attorney, B brought S to the attorney's office to sign the needed documents to allow that attorney to begin representation. The attorney filed an action, claiming that Dr. P was negligent in his treatment of S, so as to cause osteonecrosis of the mandible, and that Dr. P failed to obtain adequate informed consent from S.

When Dr. P was served with papers advising him of S's suit, he notified his malpractice carrier, which assigned defense counsel to Dr. P, now the defendant. After the typical exchange of materials in the litigation phase known as discovery, S's attorney made a motion for summary judgment solely on the issue of the claim for lack of informed consent. (A motion for summary judgment asks the court to decide an ultimate issue prior to a trial, essentially arguing that no legitimate opposition could possibly be raised.) Here, S's attorney argued that S never consented to the procedures performed by Dr. P, because she had not wanted to have surgery in the first place but that her daughter, purportedly functioning as the healthcare proxy, overrode her wishes, with Dr. P acceding to B's demands.

After reviewing all of the papers from S's (plaintiff's) and Dr. P's (defendant's) counsel, the court decided in favor of S, determining that B had overstepped her authority, given that S had never been officially deemed to be incompetent to handle her own health matters, and that Dr. P went along with the wishes of someone other than the patient, whose desires should have carried the day. All of this took place despite Dr. P's belief that S fully understood the contents of all of their discussions.

The legal impact of a grant of summary judgment in favor of the plaintiff meant that the only open issue was the amount of money that S was entitled to receive. The claim of negligent treatment then became effectively moot, because a plaintiff needs only to prove one of her claims – which the grant of summary judgment legally did – in order to be awarded damages. Dr. P's counsel advised him that an appeal of the court's decision was an option, particularly given the scarcity of legal precedent on this very issue, but Dr. P preferred to end the case and his stress. So, he consented to allow his carrier to settle the case, which the carrier did, shortly thereafter.

Takeaways

As ironic as the case facts might be viewed, and putting aside the concerning family dynamics, addressing the issue of obtaining informed consent from patients with dementia, or presumed dementia, is an ever-growing consideration. It is roughly estimated that there is a prevalence rate of dementia of somewhere between 10% and 14% of older population groups (See JAMA Neurology, Estimating the Prevalence of Dementia and Mild Cognitive Impairment in the US, Manly, et al., 2022), so practitioners are wise to be familiar with the implications of this condition regarding how they practice.

There is no reasonable expectation that healthcare practitioners must be fully aware of the effects of all legal issues that might underlie the treatment of their patients. But there is a clear expectation, as the court's ruling in this case study impliedly suggests, that, absent obvious emergency situations, practitioners should know where their understanding of legal concepts ends, and take a "legal time out," if you will, to look into whether they might be entering into dangerous territory. Obtaining the help of an attorney who is familiar with a particular issue that might arise is a safe and protective step for a practitioner to take.

Unpacking the events of this case study, members of society often have preconceived notions about the decision-making capabilities of elderly patients, especially when they present as less "sharp" than what might be expected, and even more so when they are accompanied by family members who promote a definitive view, perhaps (cynically) for self-serving purposes. It is for a dental or oral surgery practitioner to step back from a sometimes-inflamed set of circumstances and determine for themselves what makes sense.

It is usually healthcare practitioners who play a major role in these types of determinations, but clearly not all practitioners are equally qualified to perform that very important task. And if disagreement exists between patient and presumptive proxy, again with the exception of true emergencies, enlisting the outside opinion from the patient's treating physicians, or from a psychiatrist or neurologist, can be helpful toward reaching a fair solution to the problem, so as to do what is best for the patient – including allowing personal agency – and hopefully avoiding the outcome in this case study. Looking at other medical records, to ascertain whether a diagnosis of dementia had previously been made, can be valuable as well.

While state laws vary, and healthcare proxy forms commonly used often contain different words, the general concept described by B is substantially correct, as verified by the words on the document she possessed: that she was permitted to step in and make healthcare decisions for her mother in the event of her mother's inability to do so for herself. As the court involved here conceptually held, it is not for an adult child or a dentist or oral surgeon to presume that a patient lacks the mental competence to make her own healthcare decisions, but for an officially judged determination to be all that legally matters. So, while it might seem quite intuitive ("you know it when you see it") to reach conclusions regarding mental capacity, such as for surgical consent, legal constructs can view that far differently, and it is the latter which will dictate what is and what is not mental incapacity.

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Key Concepts

Handling difficult patients in dental practice
How jousting can lead to malpractice claims
Patient dismissal vs. abandonment

Underlying facts

Legal action

Takeaways

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Read previous Malpractice Minute case studies

Difficult Patient Sues Dentist After Improper Dismissal and Jousting

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Informed Consent Process with Elderly Patient Spurs Lawsuit

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