Practice More Safely // Risk Tips // How a Dental Office’s Answering Machine Led to a Lawsuit

How a Dental Office’s Answering Machine Led to a Lawsuit

Case Study

Marc Leffler, DDS, Esq.
June 2025

Reading time: 6 minutes

Dentist holding forceps, preparing for tooth extraction.

Background Facts

A woman in her mid-20s had been having discomfort for a number of months in her lower right first molar, which was especially pronounced when she was chewing. She recalled that the pain had begun shortly after she bit down on an unpopped popcorn kernel. Thinking that she had just irritated her gums, she increased her oral hygiene regimen but did not contact her dentist. The discomfort waxed and waned, so she figured that this would just take some time to get through.

In the week before finally seeing her dentist, she began to notice movement of a piece of tooth #30, combined with an uptick in the level of pain. She made an appointment to see her general dentist (Dr. A). Dr. A listened to the patient’s history and clinically examined the mouth, noting a clear mesio-distal fracture of the tooth. A periapical radiograph demonstrated a radiolucent lesion extending from the furcation to the apex, leading to the diagnosis of an infected, fractured tooth. Extraction was recommended and the patient agreed. Following a straightforward extraction with removal of a significant amount of granulation-like tissue, the patient was discharged home with usual post-extraction instructions, which included that the patient should contact the office with any questions or concerns.

On the second post-op day, the patient called the office and advised the receptionist who answered the phone that she woke up with red, warm facial swelling adjacent to the extraction site which was tender to the touch. The receptionist advised the patient that swelling after an extraction is nothing to be concerned about because it often happens and will resolve in a few days; Dr. A was not told of the conversation and the receptionist entered a chart note saying “spoke to patient, swollen”. The patient continued to feel worse, with increased pain and swelling, but she accepted that this was normal following an extraction, with this having been her first extraction ever.

Over the next weekend, she began to have difficulty swallowing, so she called Dr. A’s office, which the recording said was closed but offered no other information. She went to a local hospital, where she was admitted with a diagnosis of a submandibular space abscess. She received IV antibiotics and underwent intra- and extra-oral incision and drainage procedures, which ultimately led to her recovery and hospital discharge. As a result, she was left with a permanent facial scar which made the patient self-conscious about her appearance.

Legal Action

An attorney was retained who filed suit on behalf of the patient, now plaintiff. Dr. A was named as a defendant for having been negligent in failing to prescribe antibiotics and for failing to perform adequate and timely follow-up after the extraction. Additionally, Dr. A’s practice entity was named, for failing to have proper protocols in place, and as the employer of the receptionist, based upon her having negligently provided the plaintiff with dental advice which allowed a then-conservatively-treatable infection to become an infection warranting hospital care and leaving the plaintiff with permanent disfigurement.

The plaintiff sought monetary damages which were based upon her hospital course and the scar formation, along with the emotional distress that both caused her.

The Litigation Process

During the discovery phase, depositions were conducted, most significantly of Dr. A and the receptionist. The questioning of Dr. A focused on why he did not prescribe post-extraction antibiotics in the face of the radiographic and clinical findings; he responded, in essence, that there was no swelling or purulence so he did not see a need to do so, especially because he had removed the source of the problem. He was also asked why there had been no office policy in place which required non-dental staff members to confer with a dentist before giving patients advice about dental problems, but he was not able to provide any substantive response.

When the receptionist was deposed, it became clear that she had no medical or dental training, that she did not understand the significance of the symptoms described by the patient, and that she had based her advice to the patient on having worked in a dental office for many years, during which she had seen a wide array of patient issues, including post-extraction swelling.

Expert support was easily found by defense counsel on behalf of Dr. A’s basis for not prescribing antibiotics in this circumstance, citing a growing sentiment in dentistry against providing antibiotics unless signs of an active infection are present. However, that expert could not justify the lack of definitive office policy to prevent the receptionist’s actions, nor those actions themselves.

So, an agreement was reached by which a settlement was paid through the coverage afforded to the office entity, as compared with Dr. A’s individual coverage, because the negligence arose not from his own negligent treatment but from the negligence of the practice entity in failing to establish policy, and from the negligence of an employee of the entity. This resolution made for a non-reportable event to the data bank as against Dr. A.

Takeaways

There are diametrically opposing views by competent dental professionals regarding the use of antibiotics in situations like, and different from, this. As with virtually all clinical judgment decisions in dentistry, practitioners need to accept that others may have viewpoints counter to their own, but those differences do not mean that one approach is better or worse than another. What is most important, though, is that dentists must make considered determinations and be able to articulate sound reasons for what they do. This academic approach does not guarantee that a lawsuit will not be instituted, but it does mean that a solid expert-based defense can be provided.

When dental offices are closed, dentists should consider the ways that their patients may contact them in emergencies, whether through answering services, by giving patients their cell phone numbers, by forwarding them on to a covering dentist, or some other means. But simply having a recording, which advises callers that the office is closed and asking that they leave a message to be returned when the office opens, subjects the dentist to liability if a time-sensitive issue arises during off-hours.

In dental offices, it is only licensed professionals who are permitted to make decisions and provide advice regarding matters of patient health. Administrative staff members can and should handle administrative matters only, deferring all else to healthcare providers and making them aware of all health-related patient interactions. It is incumbent upon the dentists who oversee the work of their administrators to establish clear and unequivocal policies to assure that this protocol is never broken. This is not to say that written office rules are a necessity, but it needs to be made known to every member of the office staff that this is an immutable principle.

Finally, we take this opportunity to explain the value of maintaining coverage for the actions of all office staff members, in addition to the dentists. In this case, had there been no malpractice insurance policy covering the practice entity, there might not have been a policy provision which provided defense and/or indemnity protection for the actions of the receptionist, so the potential would have existed for an out-of-pocket payment to compensate the plaintiff for the receptionist’s improper actions. Similarly, had Dr. A not established a business entity, it would have been he, and not the entity, as the employer of the receptionist, so his personal malpractice policy would have come into play to defend and indemnify her actions, if that policy’s provisions allowed for that. While we do not advise how a practice should be set up from a business perspective, and while we do not speak here to the details of specific policies, we do want to make it clear that all of these issues are properly considered when professional liability policies are bound and renewed. MedPro’s professionals are available to discuss all of the situations raised in this case study.

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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Additional Risk Tips content

Why Accurate Documentation Matters Before Referral and Surgery

In this case study, inaccurate referral information leads to wrong site surgery and a malpractice claim. Read the case to learn how to prevent errors.

How to Stay Passionate in Your Dental Career

Insights on sustaining passion in a dental career through education, community support, work-life balance, and meaningful patient relationships.

Dentist’s Choice of Radiographic Technique Leads to Lawsuit

In this case study, radiographic imaging decisions for a dental implant procedure leads to a malpractice suit. Read the case to learn how the case unfolded.

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.