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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.

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

Key concepts

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

Underlying facts

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

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

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

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

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

Legal steps taken

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

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

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

Takeaways

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

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

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

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

Summary of takeaways

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

In this real-life case study, dentists will learn how a swallowed crown can quickly become a patient safety event and lead to a malpractice claim. See why prevention, timely follow-up, and patient communication are essential aspects of reducing risk.

Key Concepts

Swallowed crown led to malpractice lawsuit
Preventive steps to reduce swallow or aspiration risk
Compassionate communication and risk management

Background facts

E, a 64-year-old man who was markedly obese with type II diabetes and atrial fibrillation, presented for the insertion visit of a PFM crown on his upper right second molar, tooth #2. Getting to that point had been far from easy for both E and Dr. M, owing to limited opening ability and an excess of facial soft tissue. Preparation for the crown and impressioning had each taken a full visit for the very same reasons. Suffice it to say, as Dr. M later did, there was very little room to work in E's mouth. No local anesthesia was given for this visit; as Dr. M placed the crown for what would be the final try-in, his finger incidentally made contact with E's soft palate, causing him to gag and unexpectedly move forcefully, which then caused the crown to slip out of Dr. M's wet gloved hand, and out of sight. Dr. M, an experienced practitioner nearing the end of his career, who liked to work "solo", called an assistant into the room to suction the oropharynx of the supine patient, with the hope of finding the crown tucked into a tissue fold. The crown was not found.

Dr. M explained that he would need to take another impression because the crown had "slipped behind the mouth"; he did just that over the next hour. As E was being dismissed, Dr. M said that the crown will work its way down the intestines, to be voided in the stool: E should inspect his stool over the following few days, to the extent reasonable, but he shouldn't overly worry about it. E left the office, expecting to return in 10 days for the new crown to be inserted.

On the fourth day after this visit, E noticed that his stool was blood-tinged, so he called Dr. M to learn whether that might be related to the dropped crown, but Dr. M did not think so. He did, though, advise E to speak with his primary care physician if things worsened or even remained the same. The stool got redder toward the end of the week, so, that Sunday, he appeared at an urgent care center, where, upon hearing about the dental crown incident, the physician ordered an abdominal series of radiographs, which located the crown, appearing to be stuck in place at a sharp bend in E's colon. Arrangements were made for E to have a colonoscopy the following morning at a local hospital, where E was admitted for the night.

Under deep sedation, a gastroenterologist removed the crown from the colon by using a grabbing instrument. When the crown was examined after removal, the gastroenterologist reasoned that the metal edge of the crown that projected below the porcelain portion — the margin — had likely dug its way just a small amount into a fold in the wall of the colon, preventing it from moving beyond that point to be expelled. Because of E's underlying medical conditions, he was kept in the hospital until the next day, at which time he was discharged without any problems or complications.

Legal action

Although E was willing to let the situation end without any further action, his wife was particularly annoyed about the hospital, anesthesiology, and gastroenterology fees, which were not covered by E's high-deductible medical insurance policy, as well as what she viewed as Dr. M's lack of caring, as demonstrated by his having never followed up with E about what had occurred.

An attorney was brought on board to sue Dr. M for dental malpractice, so that the out-of-pocket costs and a sum for pain and suffering could be recovered. The attorney's first step was to contact Dr. M's malpractice carrier, specifically its regional claims consultant. When all records were obtained and reviewed, the claims consultant explained to Dr. M that a supportive defense expert was unable to be located, even by a local defense attorney, so that a liability defense could not be mounted, other than by way of Dr. M acting as his own liability expert.

Dr. M realized that this was far from an ideal approach, so he agreed to attempts to settle the case, which was accomplished for a relatively modest amount of money.

Takeaways

Under the best of circumstances, maintaining a grip on small objects placed in the mouth, using wet gloves, is fraught with the risk of losing control of the object — here a crown. When treatment is performed in the back of the mouth, that risk is magnified, and when the patient's anatomy makes the working space smaller than usual, the risk further increases. Adding to that, the gravitational considerations of a supine (rather than upright) patient maximize the likelihood of a dropped object being swallowed or aspirated. Each of these "weak points" can generally be mitigated: oropharyngeal packs are placed to try to physically block the backward and downward path, particularly when rubber dam cannot be used; working with a watchful, suctioning chairside assistant provides extra hands, extra eyes and extra protective devices; and seating a patient in as upright a position as possible can mean the difference between a dropped object falling harmlessly into the floor of mouth where it is easily retrievable, and a swallow/aspiration event.

Any and every time that an object is placed into the mouth, or one becomes free-floating in the mouth, and cannot be accounted for, it should be assumed to have been swallowed or aspirated unless proven otherwise, generally by radiographic evidence either way. As a general rule, the sooner the patient is able to be placed into the care of medical colleagues for locating and treating, the less the ramifications will be. That does not necessarily mean that dental procedures must always be stopped in their tracks, but it does mean that, as soon as it is safe for the patient to move on for definitive care, the better off they will usually be. Because physicians are often less than fully aware of dental materials and instruments, it is helpful to them if a photo example, or actual example, is provided to the patient to pass on to their physicians, so that they know exactly what they are looking to locate.

Two considerations which quite often lead patients to seek legal advice are unexpected and unreimbursed costs, and a perception that their dentist did not truly care about them, particularly when things did not go as planned. The former is unpredictable, and it ended up here as one of the main drivers toward legal action, but the latter can almost always be avoided. Prompt and repeated follow-up communication, by the dentist, rather than an office staff member, with patients; and demonstrating a genuine interest in patients, as people and not only "receivers of dentistry"; can go a long way toward heading off involvement of lawyers.

Not all patients and not all similar procedures are the same, whether because of underlying medical issues, patient anatomy, patient size, patient attitudes, or limited mobility. So, a one-size-fits-all approach is rarely, if ever, a helpful treatment mindset to adopt.

Finally, we address the circumstance here, where no liability expert could be found to help to defend Dr. M. While not very common in the defense of dental malpractice claims, it does occasionally pop up. In most, if not all, jurisdictions, dentists are legally permitted to serve as their own experts. But in the eyes of jurors, that is often a difficult sell. In this situation, as well as all other litigation-related issues, dentists are counseled by their defense attorneys, whether the news is easy to hear, or not.

Summary of takeaways:

Take an objective, measured approach to patient communication
Avoid criticizing prior care without full context
Maintain thorough documentation to support care decisions

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Sometimes criticizing a patient’s prior dental work can expose dentists to malpractice risk. Understand where the line lies between appropriate patient education and “jousting,” and how communication choices, documentation, and professionalism can influence legal outcomes.

Key Concepts

How criticizing prior work can increase malpractice risk
Keep communication objective and professional
The importance of strong documentation during a claim

Background facts

Dr. Y was a general, restorative dentist who recently moved into a suburban community—with great public schools—to both live and work. The area's dentists were, generally speaking, busy but not bursting at the seams, so Dr. Y realized that it would not be easy for him to establish his practice with so much competition. His approach would be to sign on to as many dental insurance panels as he could, hoping to use that platform as a foundation upon which to build a patient base. It took a couple of years, but his practice grew.

It was not that Dr. Y would "manufacture" dentistry to perform upon new patients where that need did not exist, but he was what other dentists in the neighborhood described behind the scenes as "hyper-critical" in his evaluations of the dentistry that had been done by prior dentists. R had been a long-term resident of the area, having never had dental insurance until her recent job change. She had completed implant-supported bridgework on both arches some 6-8 months ago, which had cost her a significant amount of money, and she was in the midst of a very slow process of getting used to functioning with the prostheses. With her new employer now providing her with dental insurance—a plan which Dr. Y, but not her prior dentist, Dr. K, accepted—she presented to Dr. Y as a new patient.

At the initial visit, Dr. Y took a full mouth series of radiographs and did a thorough clinical examination. When R mentioned that she "just didn't feel comfortable" with the new dentistry in her mouth, Dr. Y told her that he knew why: the abutments and pontics were overbuilt, with inadequate embrasure spaces; some of the margins were open, although slightly; and the overall dental anatomy did not allow for self-cleansing, making it "a set-up for periodontal disease.” Dr. Y suggested that all of the prosthetics be removed and replaced. Even with R's dental insurance contributing a fair amount to the cost of the proposed treatment, she would still have to pay a large amount of money out of pocket and endure a months-long process. R was very upset, to say the least, focusing that displeasure on Dr. K; she had always known that a replacement of Dr. K's work would likely be required down the road, but she did not expect that so soon after it was inserted.

Dr. Y removed the existing bridges, replaced the implant abutments, re-prepared the natural teeth, impressioned and temporized the mouth, and ultimately inserted new upper and lower cases. R was no happier with the new work, but Dr. Y told her that there was only so much he could do with the underlying foundation that Dr. K had "inadequately established,” so R would simply have to adjust. She never fully did.

Legal action

With R continually complaining to family members and friends about how unhappy she was, not only dentally, but also because of the money she had paid both Dr. K and Dr. Y, while exhausting her annual dental insurance benefits so early in the calendar year, she was encouraged to seek out an attorney who might have some solutions for her. R's newly retained attorney obtained the dental records of Drs. K and Y, as well as a narrative from Dr. Y, in which he was quite critical of Dr. K's work product, which was directly responsible for the need to exchange it and for the inability to create a more ideal replacement (due to the underlying damage it/he had caused).

When Dr. K reported the contact from R's attorney to his malpractice carrier, he was provided with defense counsel, who was able to obtain the records and report from Dr. Y. Dr. K was in literal disbelief at what he saw in writing, but he knew that it would be a difficult task, from a dental standpoint, to demonstrate the quality of his work, with it having been removed and replaced. At the same time, he felt bad for R, his patient of many years, whom he believed had been sold an inaccurate story, for the sake of Dr. Y's financial gain.

With Dr. K's counsel functioning as an intermediary at Dr. K's request, an offer was made to refund to R all that she had paid to Dr. K, in order to stave off the prospect of a lawsuit. R, through her attorney, accepted that offer, with the money changing hands once R executed a Release of Liability document.

Takeaways

As healthcare professionals, dentists are ethically obligated to advise patients regarding the conditions of their mouths, including the status of existing dental work. But without having ever stood in the shoes of a prior-treating dentist, and not knowing what challenges and limitations might have been placed upon them, or how the patient took care of themselves dentally after that treatment, blanket criticisms that do not take any of these potential factors into account are known in the malpractice world as "jousting" —not the medieval game involving horses and lances, but with similar effect. Part of professionalism is being able to candidly communicate with patients without denouncing the work of others, absent full knowledge of all contributing factors. Here, while Dr. Y acted appropriately by advising R of his findings—presuming that he did, in fact, find deficiencies and problems—he stepped into the jousting arena by doing so in a manner that made certain presumptions of blameworthy wrongdoing. It is a fine line to walk, and one to be figured out by all practitioners. Jousting, as compared with notifying, is a significant driver of dental malpractice claims; why that practice is as common as it is, perhaps more so than in other professions, is a speculative exercise for consideration elsewhere.

Dr. K's decision to try to resolve R's complaints by offering, and ultimately providing, a refund was a personal one, considering all of the issues involved with defending a protracted dental malpractice case, as compared with taking all of that off of his plate quickly. Refunds are far from uncommon in dental practice; when provided, dentists are wise to protect themselves legally by obtaining a Release of Liability (ROL), signed by the patient, in exchange for the returned money. In essence, a ROL in this context states that the patient is willing to accept a monetary benefit, while relinquishing the right to later sue the dentist regarding the course of conduct that led to that refund. As with all legal documents, ROLs are best prepared and overseen by attorneys, who can assure that the process is carried out in the most appropriate manner, so as to afford the best level of protection. We do note, however, that no ROL will prevent a patient from subsequently making a complaint to a state Dental Board, as the right to report to government entities cannot be given up through a civil process, such as a refund or a settlement. For better or worse, that is the way it is.

Dr. Y's preparation of a narrative for an attorney is an everyday occurrence. In many jurisdictions, attorneys for patient-plaintiffs are required to obtain some sort of statement, whether written or otherwise, from a dentist, in which that dentist states, in terms of varying specificity, that the treating dentist who is being considered as a potential defendant violated the standard of care, thereby leading to damage to the patient. Such statements are opinions, and opinions vary much of the time, but that is how the system works. To add to the difficulties in defending cases like this, particularly involving restorative dentistry, the work that is later claimed to have been deficient will, by definition, have been removed and replaced, so there can be no after-the-fact reviewing of the criticized work by the defendant and/or his/her defense expert. That serves as yet another reason that documentation (including post-placement radiographs, when appropriate) is so important, as it might well be the only "living" evidence of steps taken and rationales for doing so. Time-consuming as it is, documentation is not something to shortcut: that includes dentists writing their own chart entries, rather than having an assistant or other staff member do it for them.

Summary of takeaways:

Criticizing prior work without full context can increase malpractice risk.
Keep patient communication objective and avoid assigning blame.
Thorough documentation is critical for defending care decisions.

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Key concepts

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

Underlying facts

Legal steps taken

Takeaways

Summary of takeaways

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

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Dentist’s Criticism of Prior Work Leads to Malpractice Claim

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