Practice More Safely // Risk Tips // Extraction Error Leads to Lawsuit: Overview of Litigation Process

Extraction Error Leads to Lawsuit: Overview of Litigation Process

Marc Leffler, DDS, Esq.
July 30, 2025

Reading time: 8 minutes

Woman with a toothache and a dentist hand holding the extracted tooth. Focus on the hand.

We turn slightly away from our usual format, based upon some ongoing inquiries from our insureds regarding the litigation process, and explore what that process entails from an overview perspective at MedPro.

While each case situation is treated uniquely due to the individual circumstances, our goal here is to provide a general sense of the start-to-finish approach to the process, with the understanding that not every potential scenario will be addressed here. A set of background facts is provided to set the stage for the potential litigation pathways. These facts involve an oral and maxillofacial surgeon as the defendant, but they could just as readily involve other types of dentists.

Key Concepts

General overview of litigation procedure
Understanding pure consent policy provision
Importance of collaboration in litigation process

Background Facts

T was an 18-year-old male, who recently consulted an orthodontist with esthetic dental concerns, mostly due to an asymmetry of the maxillary teeth that resulted from a congenitally missing upper left bicuspid that skewed the dental midline to his left. The orthodontist concluded that, given the mildly increased over jet as well, T would best be treated with the extraction of the upper right first bicuspid, after which that space would be closed orthodontically with a rightward set of forces that would also set back the upper anterior teeth.

To carry out the pre-orthodontic treatment, the orthodontist’s receptionist, at the orthodontist’s request, called a local OMS’s “front desk,” and asked that T’s “tooth 5 on the upper right” be extracted. The OMS’s staff member noted the request, exactly as stated, in the schedule for the upcoming appointment. When T presented, the OMS was confused as to whether the orthodontist wanted “tooth #5” or the “upper right 5” to be removed, so she asked her office manager to call the orthodontist’s office to clear that up. In response, the orthodontist’s office manager looked at the chart notes and transmitted back that the OMS should remove “the upper right 5 tooth.” Although still somewhat confused, given dentistry’s multiple systems of numerically identifying teeth, the OMS nevertheless proceeded to obtain informed consent by explaining that “a tooth” would be extracted, and having T sign a “consent form” which listed “tooth extraction” as the procedure, and then uneventfully extracting the upper right second bicuspid (UR5 a/k/a #4). When the patient returned to the orthodontist several weeks later and was examined, the orthodontist called the OMS and said, “I wanted the first bicuspid removed, not the second, and that mistake will make the outcome less desirable in the end.”

MedPro’s Involvement

Immediately upon learning of the problem from the orthodontist, the OMS (Dr. K), telephone-contacted her malpractice carrier, MedPro, and spoke with the claims intake representative to advise of the situation. Because Dr. K had not, as of that time, been informed by T or a lawyer on his behalf that there was an intention to sue, the situation was noted in Dr. K’s policy file as an incident, with no further steps taken as of that time.

Less than 3 months later, Dr. K received a letter from T’s attorney, stating an intention to file an action in dental malpractice, unless T was paid a stated sum of money. Dr. K again contacted MedPro and forwarded the attorney’s letter, along with a copy of her records for T. Now, the matter was a claim, and assigned to the claims consultant who manages claims within the state where the events occurred. The claims consultant telephoned Dr. K, and the two had a detailed conversation about the dental events and the potential procedures that might follow. Dr. K made it very clear to the claims consultant that she believed that the communication errors emanated from the orthodontist’s office, and that she was of the opinion that she had “done nothing wrong.” Therefore, she wished to exercise her pure-consent malpractice policy provision and withhold consent to settle “under any circumstances.” The claims consultant explained to Dr. K that, while her right to exercise would be fully respected by MedPro, that meant that, unless a case, if formally started in court, were voluntarily withdrawn by T or dismissed by a court, it would proceed to trial. Dr. K said that she understood and was fervent in her decision.

The claims consultant spoke with T’s lawyer and advised that no settlement offer was forthcoming. Shortly thereafter, a process server appeared at Dr. K’s office and served her with a copy of the initiatory documents, often called a Summons and Complaint, in which T claimed that Dr. K was negligent, thereby causing injury to T, and also asserting a claim of lack of informed consent. Those documents were forwarded to the claims consultant, who discussed with Dr. K that defense counsel would be assigned to represent her as the case moved forward. Dr. K was now the defendant. Upon receiving the case to defend, Dr. K’s new attorney, who was very experienced in defending dental malpractice actions, met with Dr. K to review the entirety of her chart for T, discuss all that took place in terms of the inter-office communications, and explain all that would follow.

After that meeting, the defense lawyer timely served on T’s attorney a document known as an Answer, in which all claims of malpractice/wrongdoing/lack of informed consent were denied. Dr. K’s defense counsel also served a number of information-seeking documents to begin the litigation phase of Discovery, during which each party would provide documents and other requested information, all overseen by a judge. The Discovery phase provides each party with the opportunity to learn their adversary’s litigation approach, by having them share demanded information for the ultimate purpose of eliminating any “ambush at trial.” Perhaps the most consequential portion of Discovery is the taking of depositions of all parties, and sometimes of experts as well. Depositions are under-oath question-and-answer sessions during which the person being deposed provides spoken responses to relevant questions put to them by opposing counsel, and which are then transcribed by stenographers. Because deposition responses can be read to trial juries with the same force and effect as though they were stated in court, pre-deposition preparation by counsel of all witnesses – including the defendant dentist – is critical.

Completion of discovery is reported to the judge, at which time a trial date is assigned, with some judges bringing counsel (and sometimes the parties too) together to discuss settlement prospects. If expert reports and theories have not yet been exchanged between the parties, this is the time to do so. Motions seeking dismissal, if made, are generally submitted now. This time, known as the pre-trial phase, lends itself to further discussions between the parties and their attorneys, as well as the insurance carrier, to again consider whether a settlement is to be a consideration. Dr. K continues to be able to exercise her pure-consent provision, thereby moving the case to trial. Defendant dentists often make determinations regarding whether to seek a potential settlement based upon such issues as their assessment of treatment events with all positions now in the open, their weighing of the competing expert opinions, and personal concerns (time out of office for trial, reputational worries, stress, etc.), all in conjunction with their attorneys. MedPro tracks all litigation steps along the way, often seeking and considering dental, medical, and legal viewpoints from in-house or other sources. It is important to note that insured dentists with pure-consent policies can properly withhold consent to a settlement, but if they agree to seek a settlement, the ultimate decisions as to whether to settle and for what amount then lie exclusively with MedPro, as the insurer.

Trial starts with the jury selection process – voir dire – and then proceeds into what is traditionally viewed as the trial proper. At times, certain motions to exclude evidence are presented to the presiding judge, to be addressed outside of the jury’s presence, and then decided. First, the plaintiff presents his case – documentary and other tangible evidence, fact witnesses, expert witnesses – with the defense attorney able to cross-examine all witnesses who appear and testify on behalf of the plaintiff. At the conclusion of “plaintiff’s case,” defense attorneys usually seek dismissal of the entire case, claiming that the plaintiff, who has the burden of proof, failed to meet that burden to the satisfaction of the court. If granted, the case ends. But if denied, as it statistically most commonly is, the defendant’s attorneys present the “defense case,” offering their own evidence and witnesses, the most important of which is the defense expert dentist, to counter the claims that the defendant dentist was negligent, thereby causing injury to the plaintiff.

It is then time for the jury to do its job, after lawyers’ summations are heard and its members are instructed by the judge on the law applicable to the case. But even while the jurors deliberate, a settlement agreement between the parties can still be reached, presuming here that this defendant, Dr. K, waives her consent option, up until the time that the jury renders its collective decision as a verdict. A verdict for the plaintiff is almost always accompanied with an amount of money for compensation, but a verdict for the defendant means that the plaintiff has not proven that he has been injured at the negligent hand of the defendant dentist, and therefore gets no money. Post-trial motions are often presented to the judge by the losing side, either orally or in writing, with reversal of the jury’s determinations fairly uncommon. And then, the option for appeal hangs in the balance, asking a higher court to correct the trial judge’s improper trial decisions and/or the jury’s verdict, occasionally but not frequently resulting in a new trial from scratch or an alteration of dollar amount.

Final Points

To reiterate, it is more than possible, and in fact realistic, that the exact steps as discussed here will be at least slightly different in every case. But this general “big picture” is emblematic of how cases progress, from incident to claim to suit to discovery and to trial. MedPro takes the position that sued dentists, who are as knowledgeable as possible about the litigation process they are about to enter, are better advocates for themselves, assist their attorneys more effectively, and endure less stress until they emerge on the other side.

Finally, we conclude with a couple of points, the first of which was alluded to earlier: while dentists and specialists insured by MedPro may choose to withhold their consent to settle such that it is a trial jury who makes the ultimate determinations, waiving that consent does not force MedPro to settle on their behalf, but rather only permits it, should MedPro determine that settlement is the best approach. The entire litigation process – whether it concludes with a dismissal, a settlement, or a jury verdict – is a collaborative one, between the insured dentist, counsel, experts, and MedPro. MedPro handles more dental malpractice claims than any other carrier and closes 80% of those claims without payment. For the claims that do make it to trial, our insureds win 95% of the time.

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 real-life case study, dentists will see how a billing dispute and incomplete informed consent process escalated into a malpractice lawsuit. Learn why clear communication about treatment risks, accurate coding practices, and thoughtful handling of patient concerns are essential to reducing liability and protecting patient trust.

Key concepts

Dentist sued after a billing dispute and nerve injury
How informed consent gaps can increase malpractice risk
Why accurate coding and patient communication matter

Background facts

For Dr. A, extracting teeth was an everyday part of practice, as was virtually the entire scope of dentistry. In addition to postdoctoral training, she had been performing these procedures for years in a region of the state with no oral surgeons within a 2–3-hour drive. She was a participating provider in several dental insurance plans that were popular among her patients.

One such patient, P, was an 18-year-old high school senior who presented for an annual recall visit, with a new complaint of periodic pain associated with the lower right third molar. Despite P being of majority, his mother accompanied him into the treatment room to see Dr. A. Following a clinical examination, a panoramic film was taken and viewed by Dr. A. Tooth #32 was erupted, had incomplete apex formation, but was still in close radiographic proximity to the inferior alveolar canal. Dr. A assessed the pain to be a function of difficulty in cleansing the area, with inflamed gingivae as a result. She suggested, while pointing to the panoramic, extraction, which she said, "shouldn't be too hard,” although it carried a "slight risk of a nerve injury which could leave P's lower lip and chin numb, and rarely be permanent." This conversation was documented with specificity in the chart. P had heard about impacted wisdom teeth from a few friends, so he asked whether his tooth was impacted. Dr. A replied, "No, it is not.” P wanted to think about it, so he left the office with a sample of an oral rinse and instructions as to how to improve his oral hygiene. A month later, the symptoms persisted, so P's mother called the office to schedule an extraction appointment.

Before having local anesthetic injected, P was handed a paper entitled "consent form,” which he and his mother "briefly read.” The document contained a list of potential risks, including a general statement about possible "loss of sensation.” P signed the document prior to the extraction going forward. Dr. A worked on the tooth for well over an hour, much longer than she had anticipated, cutting out pieces of tooth and trimming away bone using round and fissure burs. P could taste blood, particularly at one point, which caused Dr. A to pack gauze in his mouth. The following day, P awoke to find the right half of his lower lip and chin numb, which he did not find surprising, given the warning beforehand, but so was the right half of his tongue, which was a surprise. At post-op visits, Dr. A assured and re-assured P and his mother that feeling would return to normal — it never did.

Separately, P received a bill for Dr. A's services from her billing office, seeking a co-pay for "#32 7240.” The amount was significant, despite Dr. A's advertised plan participation, so P's mother questioned the office manager as to what all of this meant. The response was that, according to the insurance plan's rules, Dr. A was permitted to charge that amount for fully impacted wisdom teeth, as this was. P's mother replied that Dr. A had specifically advised her and her son that the tooth was not impacted, no less fully so. The office manager spoke with Dr. A, but the answer came back that, because Dr. A had to work so long to remove the tooth, she was not willing to make any adjustments.

P's mother contacted the insurance carrier to explain the situation. The carrier requested a pre-treatment radiograph from Dr. A, based upon which the in-house reviewers concluded that the tooth was not appropriately coded as 7240, but rather should have been 7210 (surgical extraction of erupted tooth). Under the plan provisions, Dr. A was therefore not permitted to charge any co-pay but instead accept the plan payment in full. When the insurer notified Dr. A of that, with a copy sent to P's mother (whose employer provided the coverage), Dr. A was steadfast that she was entitled to the amount billed and would send P to collection if she was not paid. P's mother did pay the claimed balance, but the carrier dropped Dr. A from the panel due to what it referenced as "upcoding resulting in excessive billing.”

Legal action

P had slowly been adapting to the lip, chin, and tongue numbness, but his mother remained upset about the principle of billing her son and threatening a collection action, so she contacted an attorney. The attorney was not very familiar with dentistry in any legal regard, so he reached out to his own dentist, with a copy of Dr. A's records that he had been provided, to help him interpret what was going on. The dentist agreed with the insurance company's position that the extraction had been inappropriately upcoded, but perhaps more importantly that it was clear from the records that, while P had been warned of the possibility of an inferior alveolar nerve injury and its effects, he had not been told anything about tongue numbness, which came from an injury to an entirely different nerve branch and which should have been avoided if proper technique had been employed.

The attorney initiated a lawsuit against Dr. A, asserting lack of informed consent relating to the lingual nerve injury, dental malpractice regarding the causing of the lingual nerve injury, and breach of contract leading to the improperly billed (and collected) co-pay amount. The defense attorneys assigned to Dr. A by her malpractice carrier reviewed the case with their client and advised her that they would seek expert opinion as to the substance of the informed consent and malpractice claims, but that she would not be covered for the breach of contract claim, per a clearly stated policy exclusion.

The expert retained by Dr. A's counsel was provisionally willing to present a defense as to the malpractice claim regarding her having negligently caused the tongue numbness, but that position would need to be re-evaluated following her deposition testimony. However, there was no evidence in the record to demonstrate that she had provided any warning of a potential lingual nerve injury and its impacts. The defense expert did not see a pathway to successfully defend the claim of lack of informed consent. A second expert reviewer reached the same conclusion.

Dr. A's attorneys had a candid discussion with her. Even if the malpractice claim could likely be effectively defended, the lack of informed consent claim could not. So, P would be entitled to a monetary award regardless of which, or both, of the claims went P's way in the eyes of a jury. Dr. A agreed to have her attorneys seek to settle the claim, to be paid by the malpractice carrier, which they did. As part of the settlement agreement, Dr. A would personally return to P the amount his mother paid her for the co-pay.

Takeaways

While it is impossible to know whether P would have sought an attorney at some point to file an action on his behalf based upon the substantive dental issues, it is quite clear that the issue which drove the initial attorney involvement was the billed, and eventually paid, co-pay amount. There is then perhaps a bit of irony that the money that Dr. A was unwilling to waive directly led to a settled malpractice claim, but that insisted-upon co-pay not only started the legal action steps but was also ultimately paid by Dr. A out-of-pocket. Dr. A made the decision to demand a disputed amount of money, and that decision likely cost her far more — particularly with her being dropped from a panel — than had she acquiesced in the first place. It is not our role here to advise dentists as to whether they should fervently go after unpaid, disputed fees. Instead, we demonstrate a situation where doing so ended up causing more harm than benefit. Food for thought.

Experience teaches that lay jurors might not always understand scientific, dental facts, sometimes making their determinations counter to what experts and attorneys anticipate. On the other hand, issues relating to overbilling or upcoding are relatively straightforward for plaintiffs' attorneys to explain to jurors, and simple for them to understand. At times, jurors might put all else aside and render a verdict for a plaintiff if they do not see the defendant-dentist as having been honest. Such is a version of jury nullification, with the jury members substituting what they deem critical in place of what the law says is critical. Taking subjectivity of that type out of the hands of juries increases a defendant's chances for success.

This case study exemplifies how the trigger for a patient seeking legal counsel might have nothing at all to do with the quality of dentistry. Yes, dentistry is complex, and there is an ever-present unpredictability factor, so ideal results do not happen with every procedure, with every patient. What need not be complex are matters over which dentists and their staff members have full control — such matters can virtually always be taken out of the equation as to what starts the legal ball rolling.

Finally, we briefly address the coding of procedures for billing purposes. The ADA and perhaps other associations provide numerical codes for dental procedures, which state the procedure performed and which often serve as the basis for which payment is sought and made. With few exceptions — such as 7241 for full impactions with unusual surgical complications, or time under sedation/general anesthesia, as examples — procedure codes do not take into account the length of time required to complete or the difficulty in doing so. To upcode to a procedure not actually performed, for a higher fee, is to invite a host of problems, including the initiation of a malpractice lawsuit or Dental Board complaint.

Summary of takeaways

A signed consent form alone is not enough — patients should also be verbally informed of all risks, benefits and alternatives associated with a procedure, by way of back and forth conversations, and those discussions should be thoroughly documented.
Billing disputes and inaccurate procedure coding can damage patient trust and may become the catalyst for malpractice claims.
Upcoding procedures can result in payer disputes, loss of network participation, regulatory concerns, and increased legal exposure.

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.

[post_title] => How Unpermitted Sedation Led to a Dental Malpractice Claim [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => how-unpermitted-sedation-led-to-a-dental-malpractice-claim [to_ping] => [pinged] => [post_modified] => 2026-07-30 11:16:44 [post_modified_gmt] => 2026-07-30 15:16:44 [post_content_filtered] => [post_parent] => 0 [guid] => https://medprodental.com/?p=10667 [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) [2] => WP_Post Object ( [ID] => 10633 [post_author] => 180159412 [post_date] => 2026-06-08 15:18:38 [post_date_gmt] => 2026-06-08 19:18:38 [post_content] =>

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

[post_title] => How a Dropped Crown Led to a Malpractice Lawsuit [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => how-a-dropped-crown-led-to-a-malpractice-lawsuit [to_ping] => [pinged] => [post_modified] => 2026-06-10 06:35:05 [post_modified_gmt] => 2026-06-10 10:35:05 [post_content_filtered] => [post_parent] => 0 [guid] => https://medprodental.com/?p=10633 [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) ) [post_count] => 3 [current_post] => -1 [before_loop] => 1 [in_the_loop] => [post] => WP_Post Object ( [ID] => 10718 [post_author] => 180159417 [post_date] => 2026-08-17 02:07:45 [post_date_gmt] => 2026-08-17 06:07:45 [post_content] =>

Key concepts

Dentist sued after a billing dispute and nerve injury
How informed consent gaps can increase malpractice risk
Why accurate coding and patient communication matter

Background facts

Legal action

Takeaways

Summary of takeaways

A signed consent form alone is not enough — patients should also be verbally informed of all risks, benefits and alternatives associated with a procedure, by way of back and forth conversations, and those discussions should be thoroughly documented.
Billing disputes and inaccurate procedure coding can damage patient trust and may become the catalyst for malpractice claims.
Upcoding procedures can result in payer disputes, loss of network participation, regulatory concerns, and increased legal exposure.

[post_title] => Billing Dispute and Consent Issues Lead to Malpractice Lawsuit [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => billing-dispute-and-consent-issues-lead-to-malpractice-lawsuit [to_ping] => [pinged] => [post_modified] => 2026-08-27 12:28:03 [post_modified_gmt] => 2026-08-27 16:28:03 [post_content_filtered] => [post_parent] => 0 [guid] => https://medprodental.com/?p=10718 [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) [comment_count] => 0 [current_comment] => -1 [found_posts] => 84 [max_num_pages] => 28 [max_num_comment_pages] => 0 [is_single] => [is_preview] => [is_page] => [is_archive] => 1 [is_date] => [is_year] => [is_month] => [is_day] => [is_time] => [is_author] => [is_category] => 1 [is_tag] => [is_tax] => [is_search] => [is_feed] => [is_comment_feed] => [is_trackback] => [is_home] => [is_privacy_policy] => [is_404] => [is_embed] => [is_paged] => [is_admin] => [is_attachment] => [is_singular] => [is_robots] => [is_favicon] => [is_posts_page] => [is_post_type_archive] => [query_vars_hash:WP_Query:private] => b8b69812dda97b00f5cf03aea8c6f891 [query_vars_changed:WP_Query:private] => [thumbnails_cached] => [allow_query_attachment_by_filename:protected] => [stopwords:WP_Query:private] => [compat_fields:WP_Query:private] => Array ( [0] => query_vars_hash [1] => query_vars_changed ) [compat_methods:WP_Query:private] => Array ( [0] => init_query_flags [1] => parse_tax_query ) [query_cache_key:WP_Query:private] => wp_query:6571b03fcab993db56ff7e2db4947165 )

Additional Risk Tips content

Billing Dispute and Consent Issues Lead to Malpractice Lawsuit

See how a billing dispute, upcoding concerns, and informed consent gaps led to a dental malpractice lawsuit and costly legal consequences.

How Unpermitted Sedation Led to a Dental Malpractice Claim

This dental malpractice case study shows how unpermitted sedation, patient risk factors, and emergency preparedness gaps led to a claim and Dental Board action.

How a Dropped Crown Led to a Malpractice Lawsuit

A dropped crown became a malpractice claim. Learn how prevention, follow-up, and patient communication can help reduce dental risk.

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.

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.