“Jousting” Leads Diabetic Patient to Unsuccessfully Sue Former Dentist
Marc Leffler, DDS, Esq.
May 9, 2023
Reading time: 8 minutes
Dr. T was a relatively young general dentist, practicing is a suburban community for nearly 10 years. She had joined the practice’s prior owner, who was now phasing down toward retirement. Dr. T very much enjoyed performing implant dentistry, so she worked hard by taking continuing education courses to assure that she stayed current on trends in research and modernization of techniques of placement and restoration.
E, now a 56-year-old man, was a longstanding patient of the practice; he was 5’7″ tall and weighed 318 pounds. At his most recent recall, he reported being treated for hypertension, elevated cholesterol, and type II diabetes (for which he took an oral hypoglycemic); his blood pressure was recorded as 145/84, and he stated his A1C to be 7.2%. He was edentulous for some time at the sites that teeth #13 and 14 had occupied, so he asked Dr. T for solutions. Based upon clinical and radiographic assessments, during which Dr. T found tooth #15 (the posterior-most tooth in the quadrant) to have periodontal bone loss and furcation involvement, she recommended the extraction of #15 with grafting, followed by a healing period, after which she would initially place, and then restore, 3 implants in the upper left. Dr. T asked E to “run this by” his physician, and E subsequently advised Dr. T that his doctor was “fine” with it.
Dr. T routinely extracted #15 and grafted the site. Approximately 3 months later, following a reiteration of risks, benefits and alternatives, and obtaining E’s signature on a form stating such, she uneventfully placed 3 upper left implants, advising E that he should return for regular evaluations during the healing period. From the first of those examinations, and continuing, radiographs and clinical checks revealed worsening bone loss around all of the implant fixtures, until it became clear that the implants would be lost, for reasons that Dr. T was unable to explain to E’s satisfaction. E agreed to allow Dr. T to remove the implants, but he had quickly become frustrated with the situation, so he was unwilling to agree to re-grafting and re-insertion of implants after healing once again. Instead, he requested a refund of all he had paid for the process, planning to seek another dentist to treat him.
Dr. T expressed her willingness to continue to treat E, at no charge until the restoration phase, but E wanted no part of that, insisting on a full refund. Dr. T held fast to her position, which she explained to E, that nothing had been done incorrectly or improperly, so she saw no reason to return the fees paid, reiterating again that she would re-do the failed treatment. E left the practice in favor of another restorative dentist, Dr. H, in the next town, who, upon meeting and examining E, was deeply and openly critical of Dr. T’s implant-based treatment plan in a patient who Dr. H viewed as an uncontrolled diabetic, which he described to E as “doomed to fail from the start”. He offered the far less expensive treatment of a removable partial denture (clasped on the right onto the final tooth present, #3). That treatment went forward without complication and to E’s satisfaction. E contacted Dr. T, seeking that she reimburse him for the cost of the partial, but she refused.
Unable to find an attorney willing to litigate against Dr. T on his behalf, E sued as a pro se (self-represented) plaintiff. Thanks to a judge who gave every benefit to E, as an unrepresented litigant, E was permitted to offer “expert testimony” at the bench trial in the form of the dental records and reports of Dr. H, who was unwilling to offer in-person opinion testimony against Dr. T. Following that, Dr. T provided direct testimony in response to detailed questioning by her counsel assigned by her malpractice carrier, during which she took the court through the entire treatment process.
As to the specifics of her testimony, she spoke to the standards of care governing each and every aspect of what she did, and then explained how she abided by those standards without exception, but that despite ideal treatment, implants are known to and do fail, as was set forth in her documented informed consent process. In order to counter the written position of Dr. H regarding E’s diabetes, she explained several considerations to the court. First, as documented in her chart, she had directed E to talk to his physician about the anticipated treatment, and the physician responded to E affirmatively, as confirmed in court by E. Next, she explained that, although type II diabetes might be considered by some to be a relative contraindication to implant dentistry, many other dental practitioners, including she, do not see diabetes as standing in the way of implant dentistry; to bolster her stance, she explained that type II diabetes is most prevalent in older patients, which is the exact same population group that receives the greatest proportion of implant dentistry, and successfully so. Finally, she discussed that, although dental trends in the past might have favored the use of antibiotics in cases like these, the current approaches, to which Dr. T subscribed, argued against such use of antibiotics.
With E simply unable to cross-examine Dr. T on any part of her testimony, the court rendered a verdict in favor of the defendant, Dr. T, dismissing the case.
While a pervasive sense among dentists is that all malpractice cases are brought against them by powerful plaintiff attorneys employing trial-seasoned experts, this case shows that such is far from always the case. But the fact that a case, like here, might be seen by the dentist as being meritless, or valueless, or “easy” to defend does not mean that the dentist should not involve the malpractice carrier from the very first step. The assignment of an experienced dental malpractice defense attorney is perhaps the most important step in the defense process. Whereas judges overseeing cases in which 2 self-represented parties are involved might tend to be more lenient on rules of procedure – the adherence to which nearly always favors defendants – they generally tend to act more “by the book” when attorneys appear before them, because they understand the potential for an appeal if “the book” is not strictly followed. Here, not only did Dr. T’s attorney serve that purpose, but he directed the trial in a logical and stepwise fashion that made it clear for the court to follow.
The continuing and unfortunately growing concern about dentists criticizing other dentists in whose shoes they have never stood – “jousting” – most often shows itself as it did here, in patient discussions and chart entries. It is one thing for a dentist to be critical in a situation not subject to challenge, but it is quite another when that critic is forced to voice that commentary in court, under oath, and subject to cross-examination. Here, Dr. H permissibly refused to do so – as no witness may be compelled to provide opinion testimony – and that left E with little strength for his case, while, through assessment of his chart, simultaneously giving Dr. T and her counsel a roadmap to a successful plan for trial. It should be noted that expert “testimony” for E in the form allowed here is not common, but it does occasionally happen, so it is something that trial attorneys consider, along with a multitude of other factors, when preparing for a trial.
The old dental school adage, “the tooth is connected to the body”, shows its significance in this case study. Diabetes is but only one of the many increasingly common medical conditions afflicting our dental patient population. Prior to undertaking any dental treatment, dentists are wise to take into account the potential impacts that a particular disease state might have upon all planned treatments. In this case, Dr. T adopted positions regarding diabetes in implant dentistry and the use of antibiotics. So long as dentists are able to back up their positions with mainstream science, they are free to give advice and make choices with their patients, even if every other dentist might not agree, and still be working within the standards of care. The key to sound decision-making is thorough thought and understanding, leading to a solid determination.
Next, we discuss the concept of pre-treatment medical consultation. There are 2 ways to look at the circumstances which arose in that regard in this case. First, it can be argued that, if Dr. T had concerns about E’s health, enough to warrant her telling her patient to involve his physician, then she should have formalized the process with back-and-forth writings, or at least with phone calls, in order to leave a paper trail of documentation in the event that problems came to pass. On the other hand, it can be equally argued that dentists can, or even must, rely upon what their patients report to them, as following a medical consultation; but even when it comes to a patient completing a medical history form, there needs to be reasonable reliance upon what patients report, or no dental treatment might ever get done. These are personal choices made by dentists everyday: but from the standpoint of viewing life through the lens of potential litigation, as we do, there is much to be said for the confidence and security that a contemporaneous document brings, regardless of that document’s purpose.
Finally, we wonder aloud whether a refund, as requested, would have prevented the litigation which came to pass. It often goes against the grain of a professional to make accommodations, financially or otherwise, to satisfy a patient who feels badly about treatment performed. There is no correct answer as to how to handle refund requests, but it is something to consider and weigh against what might come to be if not given.
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 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.
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