Patient Allergic to Anesthetic Seeks Attorney for Cognitive Deficits

Background Facts

Y, a 37-year-old woman, was new to the area where Dr. R, a general dentist, practiced. She initially presented for an examination/hygiene visit, on the recommendation of one of her new neighbors. Y completed a medical and surgical history form, noting only a C-section delivery and an allergy to maraschino cherries. In responding to questioning about the reported allergy, Y explained that, twice, she broke out with hives and generalized itching – with the second event being worse than the first after eating a cherry that was placed into her usual, go-to drink, an Old Fashioned. Due to her good home care, Dr. R found her to be in need of only one restoration, the replacement of a 2-surface composite on her upper left second bicuspid.
 
Several weeks later, Y returned to have the restoration performed, after which she would next see Dr. R for a recall in six months. Dr. R entered the treatment suite where Y was seated, and explained that he would use a local anesthesia injection to numb the area and then “drill out the old filling” before cleaning the inside of the tooth and placing a new composite. Y agreed.
 
Dr. R placed a cotton-tip swab of watermelon-flavored topical anesthesia into the mucobuccal fold, and left it in place for close to 2 minutes, before removing it and injecting a short-acting local anesthetic at the same location. Dr. R told Y that he would give the anesthetic a few minutes to take effect, while he looked in on another patient, before treating her with the planned restoration. The dental assistant began to set up the tray and materials, while making small talk with Y, with her back to Y. When the assistant noticed that Y had stopped speaking with her, she turned to look at Y and saw her face and neck were turning red, so she asked Y how she was doing. Y responded that she was not feeling well, sensing swelling in the back of her mouth and difficulty breathing.
 
The assistant immediately went to the treatment room where Dr. R was speaking with another patient. But she did not want to interrupt the conversation, fearing that explaining her concerns would alarm that patient and cause Dr. R to be upset with her, so she waited until the conversation ended before telling Dr. R that he needed to come to see Y. Dr. R found Y to be “barely conscious,” struggling to breathe. He instructed the assistant to call 911, as he placed the nasal hood from the N2O/O2 setup over Y’s nose, but the system had not yet been turned on for the day so no oxygen flowed until Dr. R was able to manipulate the valve to allow oxygen to flow. But Y continued not to breathe, so Dr. R adjusted the dental chair to a supine position and manipulated Y’s head to try to open the airway, but her chest still did not rise.
 
Dr. R began mouth-to-mouth resuscitation, with little apparent effect, until paramedics arrived and intubated Y, thereby allowing oxygen into her lungs. Based upon communications with hospital personnel, epinephrine and corticosteroids were administered before transport to that hospital. Y survived, but she claimed distinct cognitive deficits, later confirmed by a neurologist, which greatly impacted various facets of her life, including her occupation. The neurologist attributed those deficits to a transient oxygen deficit.

Legal Action   

With the aid of her family members, Y sought and retained an attorney to explore her options. The attorney gathered the records of Dr. R (including the documentation that accompanied the topical anesthetic agent) – the ambulance team, the hospital, and the neurologist – and passed those on to dental and medical reviewers.  
 
The potential dental expert learned that the topical anesthetic contained red dye #40, which is also found in maraschino cherries, and which is known to act as an allergen in certain people.The expert opined that Dr. R had been negligent in failing to adequately explore the patient’s reported allergy in the context of using a topical anesthetic which also happened to be red. When the attorney inquired of the expert whether such an ask of Dr. R was beyond the limits of reasonable foreseeability to constitute a violation of the standard of care, the expert responded that allergies can have such a significant and detrimental effect that no reported allergy should go without at least a reasonable investigation, especially when the only treatment at issue is clearly non-emergent. The expert was also of the opinion that Dr. R had failed to establish a proper office protocol to encourage his staff to interrupt anything if a patient’s immediate health might be at stake. Finally, the expert criticized Dr. R for leaving the patient unattended – except for a dental assistant whose primary duty at the time was to prepare for a procedure rather than to observe the patient – after delivering the topical and local anesthetics.
 
The medical expert stated full agreement with the neurologist as to the cause of Y’s cognitive deficits, and further attributed the transient oxygen deficit to the allergic reaction Y experienced and to the delay in addressing it.
 
Finally, the attorney consulted with an occupational expert who personally evaluated Y, interviewed her work supervisor, and looked at her relevant medical records. This expert opined that Y no longer had the cognition required for her prior and still current position, and that, without a kind and understanding set of supervisors, Y would not be able to maintain her job. However, she would not be able to advance to the extent that her prior work reviews anticipated for her, thereby depriving her of a substantial amount of income over her projected work life.
 
A suit was filed against Dr. R and his practice. Defense counsel was assigned by Dr. R’s malpractice carrier to defend Dr. R. After initial reviews of documents and interviewing Dr. R, they obtained the reviews of similar types of experts as had become involved on behalf of Y. The dental expert was generally in agreement with Y’s dental expert, except that she disagreed with it being a standard of care violation to leave the treatment room while local anesthesia was taking effect, saying, “that’s what just about everyone does”. The medical and occupational experts retained by defense counsel concluded almost exactly as did their counterparts.
 
Dr. R had been personally devastated by these events since they took place and did not want to fight Y on the legal front. He encouraged his attorneys to do whatever they could to resolve the case without putting Y and him through a courtroom battle. They did just that, and because a resolution came so early in the litigation, before Y’s legal team had spent large amounts of money, an amount of settlement money that all involved thought to be fair and reasonable was agreed upon.

Takeaways

Addressing the final legal issue above first, the dentist’s personal input is an important factor in how he wishes to proceed in litigation. The dentist will have the option of either (1) defending his actions before a jury at trial, or (2) electing to consent to settle the lawsuit, thereby giving his insurance company the ability to determine whether early resolution of the lawsuit via settlement in lieu of proceeding to trial is the better option. Another factor sometimes considered is that of sympathy. While judges will generally instruct jurors that they are to exclude sympathy from their deliberations and verdicts, the human mind of those jurors might well be unable to make that exclusion, even unknowingly, as hard as they might try to do so.

Considering the major point of expert criticism against Dr. R, that of investigating all reported allergies, a larger tent within which to view this is that it is the obligation of dentists to appropriately explore all aspects of the patient’s stated medical history to the point that the dentist has a clear understanding that the planned treatment will be able to be performed safely, in all respects. Sometimes that exploration involves the dentist becoming (re)familiar with the conditions presented. Sometimes it involves a phone call to a medical colleague or two to discuss the patient’s issues and potential fallout, and sometimes it means referring a patient to a physician, whether it’s their own established practitioner or one of the dentist’s choosing. Whichever way a dentist elects to assure patient safety, the critical end point is that patient safety must be assured.

This case demonstrates a number of circumstances that led to delays in the treatment of Y, once the emergency came about. One of those which was addressed by Y’s expert was that of failing to establish an office protocol such that a staff member can quickly and comfortably alert the dentist to a problem that requires immediate attention. An approach – but by no means the only approach – to enable the communication of a serious concern without disturbing other patients is to set up a code word to be use between dentists and staff that indicates the need for prompt attention. We suggest using a word not commonly used in everyday interactions, such as “Saskatchewan” or “marmalade” (or any other term agreed upon), which is never spoken in the office except in emergencies. A second issue raised by Y’s expert was the immediate unavailability of oxygen, here due to the valve not having been opened before patients started to be seen that day. Oxygen is an important emergency drug, so it is more than appropriate for it to be ready to be used with virtually no notice. The same approach might be employed for other drugs and/or equipment that play a crucial role in emergency care.

Finally, we note the disagreement between experts regarding the propriety of a dentist leaving the treatment room while waiting for local anesthesia to take effect before starting the procedure. Disagreements among experts are the norm, rather than the exception, so matters of judgment should be exercised with due thought, weighing all considerations, and having a willingness and ability to defend the choice, not based upon “this is what I always do,” but instead, “this is why I do that.” The former carries little jury weight, while the latter sends the message of professionalism.

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.