Difficult Patient Sues Dentist After Improper Dismissal and Jousting

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.”