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Negligence Leads to Aspirated Foreign Object and Lawsuit

Case Study

Marc Leffler, DDS, Esq., & Mario Catalano, DDS, MAGD
June 18, 2024

Reading time: 9 minutes

A dental tooth model with metal dentistry tools.

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

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 case study, we explore how a misidentified biopsy location – due to a miscommunication - resulted in wrong-site surgery and malpractice claims. The case highlights the importance of documentation accuracy in preventing risks.

Key Concepts

Preventing wrong-site surgery through pre-procedure precautions
Vicarious liability for documentation errors
Pure consent to settle clauses in malpractice policies

Background Facts

T, a 71-year-old man, was a retired carpenter, with a medical history of well-controlled hypertension and chronic, episodic sinusitis, and a social history of having smoked at various times in his life, as much as up to a pack of cigarettes a day. He visited his dentist, Dr. D, at irregular intervals and never wanted to establish a big-picture treatment plan. At his most recent visit, Dr. D noted a course, irregular white area at the buccal mucogingival junction around teeth #29-31. Not feeling comfortable making even a provisional diagnosis, Dr. D referred T to a periodontist, Dr. O, to evaluate the area and treat as needed. Dr. O performed an incisional biopsy of the area and sent it to an oral pathologist, Dr. H, for histopathological assessment. The lesion was read out provisionally as atypical epithelial proliferation, but Dr. H asked for a larger sample to be able to make a more definitive diagnosis.

Dr. O took a second specimen from an immediately adjacent site. Due to a clerical error, Dr. O entered into the chart that this specimen had been taken from the "lower left buccal gingiva," with her dental assistant repeating that error on the pathology request form that was forwarded to Dr. H with the tissue. After microscopically examining the specimen, Dr. H diagnosed it definitively. The report from Dr. H to Dr. O read "squamous cell carcinoma, moderately-to-well differentiated, lower left buccal gingiva," the latter aspect having been copied by Dr. H, exactly from the requisition provided by Dr. O's office with the most recent submission.

Upon seeing the words "squamous cell carcinoma," Dr. O immediately referred T to a double-degree oral and maxillofacial surgeon, Dr. M, who had head and neck surgery fellowship training, for evaluation and treatment, giving T a copy of the biopsy report to take with him. Dr. M reviewed Dr. H's report, examined T, noting a small lesion on the buccal aspect of teeth #30-31, and explained to T that he would need a PET scan to determine whether there had been any spread. Presuming no such spread, Dr. M advised T that the lesion could be successfully treated by surgery alone, specifically a marginal mandibulectomy and a limited neck dissection. The lesion had not spread, per the PET scan and other modalities, so the stated plan would go forward. T agreed and surgery was scheduled at a regional medical center.

On the day of surgery, T waited in a pre-surgery room, where his medical history was reviewed and identification was checked. A consent form stating the procedure to be "removal of portion of lower jaw, and neck dissection" was signed by T and witnessed by a nurse. Dr. M said a brief "hello" to T before changing into scrubs and entering the operating room, where T was already on the table. Dr. M asked the anesthesiologist to proceed.

Dr. M had taped Dr. H's biopsy report to the OR wall, read it again, and prepared to make an extraoral left submandibular incision, through which he would both remove a mandibular segment and perform the limited neck dissection. Technically, the procedure went forward uneventfully, with T then transferred to the post-anesthesia care unit. T's wife was brought in to see her husband while Dr. M was still there, dictating his operative note. She was aghast to see that surgery had been performed on T's left side, when she knew that the cancer was on the right. When she confronted Dr. M on the spot, he said, "here's the biopsy report, read it for yourself."

Shortly after T's initial surgical recovery, another surgeon treated T, this time correctly operating on the right side of T's face and neck. T suffered emotionally, to the extent that he sought and obtained psychological counseling, but he was never able to comfortably eat or drink, or otherwise normally function orally again. He required and received reconstruction bilaterally, but he always found it to be very compromised and esthetically unacceptable.

Legal Action

T retained a seasoned attorney, who collected all records and who obtained opinions from a general dentist (like Dr. D), a periodontist (like Dr. O), an oral pathologist (like Dr. H), and an OMS (like Dr. M). The general dentist saw no liability on Dr. D's part, as he had immediately made an appropriate referral. The oral pathologist similarly found no liability as to Dr. H, reasoning that oral pathologists in biopsy situations do not assess the patient clinically. They simply diagnose what they see microscopically, which he did accurately, and report the findings regarding the site that was conveyed on the requisition it had come from.

The conclusions as to Drs. O and M were quite the different. The expert periodontist stated his view of Dr. O's negligence succinctly: Dr. O's recording error which incorrectly stated the location of the lesion to be examined was inexcusable, and it served to set the entire cascade of events into action, resulting in wrong-side surgery having been done. The oral surgery expert was deeply critical of Dr. M, claiming that he failed to clinically correlate the location findings on a biopsy report with the patient's actual condition, and then compounded the situation by being unwilling to address his error, thereby violating his duties, both surgically and ethically. In short, said this expert, Dr. M failed to do the most basic tasks, namely double checking the intended surgical site before performing irreversible, life-altering treatments.

Substantial settlement amounts were paid to T on behalf of both Dr. O and Dr. M. Additionally, Dr. M was sanctioned by his State Board.

Takeaways

Wrong-site treatment, including surgery – whether, as here, relating to the side of the mandible to be removed, or extracting a first bicuspid instead of an orthodontically planned-for second bicuspid, or endodontically treating a healthy lower molar instead of the diseased tooth next to it – has permanent effects, which are virtually always preventable. Pre-procedure techniques can be, and routinely are, employed that will stop this type of error from ever taking place, such as taking a time out for confirmation, marking the side/site of surgery, having two people independently confirm what is to be done, clinically correlating a result document (such as a biopsy report) with an actual finding, and having an open, no-consequences policy that encourages office staff to voice any concerns before a potential untoward event begins. The old "a stitch in time" adage is never more applicable than in pre-procedure risk protection.

One of the most frequent case types now seen in malpractice claims is a practitioner performing treatment where it was not intended to be, and the trend appears to be growing. While the reasons for that are simply theories, a common-sense approach is that such events might well be driven by a focus on the number of patients seen and procedures performed. In reality, the amount of time needed before a procedure to assure correct patient, correct site, correct procedure is nominal in comparison to the amount of time that most procedures take. But even if a practitioner or an office is measurably slowed down to achieve those assurances, obligations to patient safety warrant those delays.

This case highlights the consideration of responding to patients and their family members when results are not as planned or expected, when complications come to pass, or, as here, when errors are immediately obvious. It would not likely have changed the ultimate course of legal events had Dr. M responded to T's wife differently, because the negligence was so clear and significant, but it might have reduced the likelihood of a Board complaint being levied against him. Evidence to support that theory lies with the fact that no Board complaint was filed against Dr. O.

The pathology request form sent to Dr. H with the second specimen taken by Dr. O was completed by Dr. O's dental assistant, who wrote the requisition form. By way of a concept known as vicarious liability, what the dental assistant wrote is the functional equivalent of Dr. O having written it herself. The assistant's error, whether copied from Dr. O's own transcription error or not, becomes Dr. O's error as well. All that is delegated comes back to the delegator, so double-checking of even such a seemingly unimportant task is critical for liability protection and for patient protection.

As a background fact, both Dr. O and Dr. M had professional liability ("dental malpractice") policies with "pure consent-to-settle" provisions, meaning that no settlement could have been reached without their agreement to do so. Such a provision means that a practitioner can demand that a lawsuit brought against them be tried in court before a jury, regardless of how strong the evidence of wrongdoing might be. For every case, practitioners are counseled by their attorneys regarding the pros and cons of settlement versus trial, with the potential implications of both fully set out on the table.

Finally, we note that, simply for purposes of brevity, some details, which were not relevant to the risk management issues discussed, were omitted. This is particularly the case regarding the pre-surgical work-up phase of care, secondary criticisms addressed by the experts, and the documentary and testimonial evidence before the State Board. Their absence should not be construed as necessary but missing pieces.

Summary of Takeaways

Wrong site surgery remains a leading and largely preventable source of malpractice claims.
Dentists are accountable for errors made by delegated staff, even when those errors were unintentional.
Simple confirmation practices before irreversible procedures can prevent patient harm and legal consequences.

A fulfilling dental career is powered by passion. In this article, Dr. Shafa Nathani, a member of MedPro Group’s Dental Advisory Board, offers insight on staying motivated and shaping a career that you’re passionate about.

Key Concepts

Job satisfaction and preventing burnout
Continuing education for dentists
Mental health and work-life balance

Cultivating your passion as a dentist can boost your job satisfaction throughout your career. When you genuinely enjoy what you do, it's easier to feel fulfilled and eager to come to work each day. Maintaining enthusiasm at work also helps keep you motivated, especially during difficult periods.

In addition, your passion for your dental career can trickle down into your care. Your upbeat demeanor can be contagious, helping to build trust and a sense of safety with your patients. This often leads to fewer appointment cancellations and a stronger commitment from your patients to stick to their treatment plans.

Building a dental career you love begins with securing reliable dental malpractice insurance – so you can practice safely and confidently with protection against potential malpractice claims. With trusted coverage from industry leader MedPro Group, you’ll get the peace of mind you need to deliver the best care to your patients and focus on fostering a fulfilling career.

Read this article for tips on how to choose the right dental malpractice insurance policy.

Q&A with a MedPro Group Dental Advisory Board Member

We interviewed Dr. Shafa Nathani, DMD, a member of MedPro’s Dental Advisory Board, to learn how she maintains her enthusiasm for her practice.

What’s your favorite part about working with patients?

"Every patient who sits in my chair comes with a story, and that’s something I never take for granted. On most days, the office is busy and fast-paced, and I may only get a few moments with each patient. Still, those moments often carry the most meaning. Whether it’s meeting a new patient for the first time, delivering complete dentures to someone we’ve been caring for over months or years, or seeing a recall patient after a long gap and catching up on their life, those brief connections matter deeply to me. Outside of the technical side of dentistry, it’s these human moments that ground me. After a day that feels like a total blur, they remind me why I chose this profession in the first place and how privileged I am to be trusted with someone’s care, comfort, and confidence.”

How do you prevent burnout as a dentist?

"I’m a little over a year into my career, and I’m currently in a phase of saying ‘yes’ as much as possible, working hard to gain experience and take full advantage of the momentum from dental school. While that growth has been exciting, it also comes with physical and mental challenges.”

“There are days when my back aches, the mental load of running a busy office feels overwhelming, and the idea of taking time off sounds incredibly appealing. Early on, my routine after work was to go straight home, sit on the couch, and try to decompress. However, I quickly realized that I was still waking up tired and feeling like my life revolved entirely around work.”

“Making intentional changes helped shift that mindset. I joined a yoga studio, spent time at the library, and found ways to stay mentally and physically engaged outside of dentistry. Even though I was still tired, I felt fulfilled. That sense of balance has been essential in preventing burnout and helping me remain enthusiastic, motivated, and present for my patients."

Learn more about recognizing and preventing burnout in this article.

Can you share a pivotal moment that reaffirmed your passion for dentistry?

"Within my first month of practicing as a dentist, I treated an older patient whose upper bridge and partial had completely failed. He required full-mouth extractions, but financial limitations prevented him from receiving care from an oral surgeon. I wanted to help him, but I also questioned whether I was capable of managing a case of that complexity so early in my career.”

“I reached out to a mentor who guided me step by step through the surgical process and denture delivery. While he was incredibly grateful for the care, that wasn’t the moment that truly reaffirmed my passion for dentistry. It was everything that followed. Over the next year, I saw him regularly for adjustments and follow-up exams, and during those visits we shared life updates and built a genuine connection. On my last day at that office, we tearfully said goodbye, and he offered me his blessings.”

“That moment reminded me that dentistry is about far more than procedures. It’s about relationships, trust, and long-term impact. He will be attending my wedding later this fall, a testament to how meaningful patient relationships can become."

How important is continuing education to staying passionate about your career?

"Continuing education is incredibly important to me, both professionally and personally. Dental school provides a strong foundation, but it can’t possibly cover everything. Depending on how you want to practice, CE can help shape you into a well-rounded dentist or allow you to focus deeply on a specific niche. I identify strongly with being a well-rounded practitioner.”

“I’ve discovered countless resources and taken courses that reignite my excitement for learning and push me to try new techniques that lead to better clinical outcomes and smoother recovery for patients. Dentistry is constantly evolving, and staying current isn’t optional, it’s a responsibility. Engaging in CE keeps me challenged, curious, and inspired, which directly translates into better patient care."

How do you stay connected to the dental community? How does that affect your passion for your work?

“Having a supportive dental community is vital to my success and longevity in this profession. I’m incredibly grateful for the friendships I formed in dental school. We often joke that between all of us, we somehow cover every time zone in the country. Even though we aren’t geographically close, those friends are the first people I reach out to because they truly understand the challenges, pressures, and victories that come with dentistry. It’s a judgment free space where I can ask questions, vent, or celebrate wins.”

“Additionally, my current role allows me to work within a DSO alongside a strong group of dentists. Through monthly calls and in person collaboration, we’ve built relationships rooted in mutual support and shared growth. This community has been essential in keeping my passion for dentistry alive because I never feel isolated. Instead, I feel supported, encouraged, and reminded that I’m part of something much bigger than myself.”

Passion starts with security

You're passionate about your patients. We're passionate about protecting your good name. With over a century of dental malpractice expertise, we'll protect your practice so you can focus on building a career you love.

To learn more, contact our team or get a quote today.

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In this case study, dentists learn how an implant placement evolved into a malpractice lawsuit after the patient developed persistent postoperative nerve injury symptoms. The case demonstrates how clinical choices made at the planning stage can significantly influence the legal trajectory of a case.

Key Concepts

Understanding divergent opinions between experts
Determining standard of care for different radiographic techniques
Understanding the pure consent to settle clause

Background Facts

Dr. P practiced restorative dentistry in a suburban community, since her completion of dental school and a general practice residency. During her formal training and after, she engaged in didactic and clinical coursework involving implant placement and restoration and regularly recommended and employed dental implants in her treatment plans. That was the case when a new area resident, O, a healthy man in his 40s, presented for general care and consideration for replacing missing tooth #30, which was extracted years ago following a trauma-induced fracture.

O's mouth was in generally good repair, as he practiced good home hygiene and had been a regular dental patient for his entire adult life. Dr. P discussed the replacement options of a 3-unit fixed bridge and an endosseous implant, upon which a single crown would be placed. After taking and viewing a panoramic radiograph, Dr. P advised O that he had "plenty of bone" to support an implant, and she suggested that approach. The costs were similar, so O opted for the implant plan. Dr. P advised O of the usual risks of implant surgery, including a nerve injury which could even be permanent in "rare" situations. O agreed to go forward and set up an appointment within the next few weeks.

At the surgical visit, a chairside assistant presented O with a document entitled Implant Consent Form, telling O that this was exactly what Dr. P had discussed with him. O quickly perused the form and signed it. Based upon measurements she made on the panoramic film, Dr. P determined there to be 14.5 mm of mandibular bone superior to the inferior alveolar canal (IAC), so she planned for and placed a 13 mm fixture. Upon elevating a gingival flap, Dr. P noticed that the lingual height of bone was "a good deal" higher than on the buccal aspect. Other than O briefly wincing toward the end of the preparation phase, all went smoothly, with the implant covered with soft tissue and sutured. A post-placement periapical radiograph showed the implant in very close approximation to the IAC, but Dr. P saw "daylight," so she was not concerned.

One week later, at the suture removal visit, O complained of "pins and needles" and "numbness" on the right side of his lower lip and chin. Dr. P stated that she remained "unconcerned," explaining that this is common and all should be back to normal over the next weeks or months. O returned for crown placement 5 months after implant surgery, still with the same "annoying sensations." Dr. P was surprised that the situation had not normalized, but she continued to reassure O of a return to normal. That never came.

Legal Action

O always found the tingling and numbness to be uncomfortable, but he never thought to do anything about it until he met up with a college classmate of his, now an attorney, at an alumni event. The classmate did not practice law where O now lived but suggested that he consult with an attorney he knew who did "a lot of malpractice work." O met with that lawyer, who gathered all of Dr. P's records and sent O to a local neurologist to assess the extent of the injury. The neurologist confirmed that O's mandibular nerve was in fact injured and did not conceive of any improvement, now nearly two years after the surgical event.

O's attorney contacted an experienced dentist whom he knew, who had testified in dental malpractice cases in the past, and who, like Dr. P, regularly placed and restored implants, seeking to retain that dentist as an expert on behalf of O. Following a review of the records, the expert reported back to the attorney that, in his opinion, Dr. P had deviated from the standard of care, which in the expert's view required the use of CBCT radiography in order to accurately determine available bone for implant placement. The expert cited specifically to Dr. P's intraoperative finding of a sloped mandibular crest, which could not have been determined on the 2-D panoramic but would have been seen on a 3-D CBCT, had one been taken. The expert added to that opinion the concept that, once Dr. P noted that lingual-to-buccal slope, she should have immediately stepped back and reconsidered whether the planned-for 13 mm implant was appropriate, which it ended up not being, as the measurement was based upon the highest point of the crest, rather than lower points on that slope which were closer to the IAC.

The attorney quickly filed suit against Dr. P, as the statute of limitations was approaching. Dr. P contacted her professional liability carrier, which assigned defense counsel to Dr. P. O's attorney voluntarily shared his expert's report with defense counsel, hoping to demonstrate a strong basis for an early settlement. However, defense counsel retained its own expert, who opined that the standard of care allowed for 2-D panoramic films for the purpose of implant planning, although acknowledging a deep split within the dental profession. Some dentists and organized dental groups asserted that (exactly because of anatomic situations as Dr. P found) 3-D studies were required prior to posterior mandibular implant placement, with other dentists and dental groups agreeing with this defense expert's stance. In part, the latter view is supported by the statistical fact that, according to recent assessments, only 29% of U.S. general/restorative dentists have on-site CBCT availability, with less than 2/3 of dental specialists having such access.

Defense counsel recognized that a motion for summary judgment––one seeking dismissal of the case without trial––would not be fruitful because such a motion can only be successful when, among other things, there is no legitimate difference between opposing expert opinions. Therefore, defense counsel thoroughly presented Dr. P with her options: (1) go to trial and ask a jury to determine whether she had run afoul of the standard of care, allowing them to award money to compensate O for his injuries if they determined that she did not meet the standard of care, and if that was causative of his injuries; or (2) trying to reach a pre-trial settlement, presuming that the carrier agreed with that prospect, which it did.

Dr. P frankly said to her attorney that, in multiple continuing education classes she had taken, the need for pre-implant CBCT studies was discussed, for the very reasons highlighted in O's treatment. She further acknowledged that she would have to testify to that experience if asked at trial. Dr. P was concerned, so she authorized attempts to resolve the case. Because O's injuries were viewed, even by his own lawyer, as not severe, evidenced in part by O having never sought subsequent evaluations or care other than at the direction of his attorney, a modest settlement was reached.

Takeaways

It is the rule, and not the exception, that experts for plaintiffs and defendants will disagree, and that is also the case for dentists, outside of the litigation realm. Those disagreements take center stage during dental malpractice trials, with jurors left to determine which of the opposing positions they accept. As Dr. P reasoned here, it is rarely, if ever, simply a coin flip, because a host of factors play into jury determinations, so the pre-trial "prediction calculus" takes into account a common sense approach as to how lay people will most likely come to their conclusions on matters of science and professional expertise. Sometimes demeanors of the parties and/or experts carry the day. Sometimes the bases of expert opinions are determinative, and sometimes, as might play here, particular professional experiences in the dentist's past are of significance. While legitimate (not fabricated) differences of expert conclusions generally preclude dismissal before trial by way of motions, those differences will need to be resolved by a trial jury. There is no getting around that.

This case study briefly touches on the concept of statute of limitations (SOL), so a short description is in order. The SOL is the time following a claimed negligent event (or sometimes the subsequent discovery of that event) within which a plaintiff must file suit or be forever time-barred. Of course, as with so many issues in the law, there are nuances and issues which can serve to lengthen the allowable timeframe, but they are exceptions, with the statutory SOL generally being the bedrock. The concept of SOL is perhaps the most variable legal issue as between the States––or at least close to the top of the list––but it is a consideration for attorneys (or self-represented plaintiffs) to grapple with, and not something with which dentists need to familiarize themselves.

As the body of this case study references, divergent views exist within dentistry as to what radiographic techniques are "best" for various planned procedures or diagnostic approaches, which in the litigation arena often translates to opinions as to standard of care. Articles in respected journals present competing ideas. Some take the approach that dentists are in the most ideal position to make patient-based, procedure-based, and circumstance-based decisions as to which radiographic techniques––whether CBCT, panoramic, periapical, etc.––are most appropriate clinically. Others are more rigid, asserting, for example, that nearly all invasive dental/oral surgical procedures require CBCT studies in advance. While we do not advocate here in either direction, dentists and oral surgeons ought to be aware of these opposing schools of thought and consider them in decision-making, realizing that jurors might get the final say.

We end on a note about the decision faced by Dr. P. Given that she had a "consent-to-settle" policy, it was her right to refuse any type of settlement, regardless of the input or advice of her counsel or insurer. Had she not had such a policy, that decision would not have been hers to make. This is yet another issue for dentists to consider when choosing a malpractice carrier and policy.

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. © MedPro Group Inc. All rights reserved.

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Key Concepts

Preventing wrong-site surgery through pre-procedure precautions
Vicarious liability for documentation errors
Pure consent to settle clauses in malpractice policies

Background Facts

Legal Action

Substantial settlement amounts were paid to T on behalf of both Dr. O and Dr. M. Additionally, Dr. M was sanctioned by his State Board.

Takeaways

Summary of Takeaways

Wrong site surgery remains a leading and largely preventable source of malpractice claims.
Dentists are accountable for errors made by delegated staff, even when those errors were unintentional.
Simple confirmation practices before irreversible procedures can prevent patient harm and legal consequences.

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Why Accurate Documentation Matters Before Referral and Surgery

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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.