Patient Injured After Brick Flies Through Office Window

Background Facts

As he entered the office building where his general dentistry practice was located, Dr. R was pleased to see the progress being made in re-facing the exterior brick wall, which had begun to look a bit dated. Dr. R had been practicing many years, so he had been thinking about retirement in the not-too-distant future. That morning had been set aside for 8 maxillary crown preparations, impressions, and temporizations on C, one of his most longstanding patients.

It was a beautiful day overlooking the adjacent park, so the blinds on the floor-to-ceiling windows were open. After giving local anesthesia, Dr. R began to prepare the first of the teeth, using a fissure bur. Without any warning at all, a large flying brick from the construction project broke through and shattered the window, landing by Dr. R’s foot and close to C’s head, which had been fully reclined such that it was no more than two feet from the floor where the brick rested. Being completely startled by the noise and broken glass, C suddenly and violently moved.

Because Dr. R had been actively in the process of cutting through tooth structure, the handpiece and bur were in the mouth with the bur running. The sudden movement led to the still-running bur creating a through-and-through laceration of the commissure area, extending well into the cheek, totaling approximately 2 cm in length.

After realizing what had happened, Dr. R applied gauze pressure to C’s mouth and face to gain control of the bleeding. Recognizing the need for C to be seen at a hospital, he asked his staff to call 911. It took nearly 30 minutes before EMS arrived, during which time Dr. R was able to make a basic temporary crown on the one tooth he began to prepare, and by which time the bleeding was under control. C was transported to the closest hospital.

In the emergency room, a plastic surgeon meticulously sutured C’s laceration in multiple layers, attempting to get the best cosmetic result possible. C was later discharged home, where she received a call from Dr. R to see how she was doing and to apologize for what had happened. C told her dentist that he need not apologize because it was such an unpredictable event.

C saw the plastic surgeon regularly over the next months, before she was taken to the OR for a scar revision procedure. She remained displeased with the aesthetic result and constantly felt self-conscious about it.

Legal Action

C was torn about what she should do, if anything, from a legal standpoint. Friends encouraged her to get a lawyer to assess her options, but she dreaded having to sue Dr. R because they had known each other for so long. She knew that a lawsuit would not change how she looked, but she also was starting to believe that she was entitled to be compensated. C approached Dr. R by phone, and asked if he would pay her the amount of money she suggested, in order to avoid a lawsuit, but he refused.

C retained an attorney who quickly instituted a lawsuit against Dr. R. Once Dr. R was served with papers, he sent those along to his malpractice carrier, which then assigned him a malpractice defense attorney. As the early steps of litigation proceeded, defense counsel filed a motion in an attempt to have the case dismissed. The thrust of the argument presented to the court was that the flying brick was an entirely unforeseeable event, so that Dr. R could not have protected against it or prevented its effects.

In opposing the motion, the expert dentist retained by C’s attorney posed two counterarguments along with C’s cross motion seeking judgment in her favor: (1) that Dr. R specifically noticed that brick facing work was being done on the morning he was about to treat C, so he should have considered that one of the bricks could fly through his window mid-treatment, and therefore have been prepared for that; and (2) that regardless of what specifically might have caused the patient to suddenly move, the potential for a sudden movement by a dental patient at an inopportune time happens often enough so that it must be protected against as a general prospect, always maintaining a solid finger rest.

The judge summarily rejected C’s first argument out of hand, holding that no reasonable person seeing facing work on their building would realistically expect a brick to fly into their particular office. However, the judge both rejected Dr. R’s request for dismissal and granted C’s application for judgment in her favor, based upon essentially the same line of reasoning that C’s expert employed. While a dentist – specifically Dr. R – need not exactly foresee what might cause a patient’s sudden movement, said the judge, Dr. R should have considered and foreseen that a patient’s sudden movement might occur without warning, so protective means must be put in place, such as the finger rest suggested by C’s expert, that will prevent injury to that patient in case some event, even of the patient’s own making, were to take place.

With judgment in favor of C in hand, all that remained was a determination as to the amount of money due C. While a jury trial as to the measure of damages was an available option, Dr. R decided, in conjunction with his attorney and insurer, that reaching a settlement figure was in everyone’s best interests. That is what then took place, ending the matter.

Takeaways

The court’s ruling is an important one. While a particular state’s trial court ruling has no binding effect on other courts – except perhaps other courts in the same state at the same or lower jurisdictional level – the concept expressed is one that is a generally accepted principle. It is a big picture of foreseeability, rather than a specific postage stamp picture, that will be determinative, so dentists should be so aware. Paraphrasing this court, while you might not expect, even in your wildest dreams, that a brick would fly through your window in the midst of a crown prep, sudden and unpredictable patient movements are far from uncommon. Preventive techniques to protect against the concept (sudden movement), rather than the specifics (a flying brick), are the goal and in fact the obligation.

We often see that patients who are disappointed with their dental treatment will first approach the dentist, asking for some form of compensation – whether a refund, payment for future dental work, or a true settlement – before progressing to further steps that might include attorney involvement and/or a complaint to a state Dental Board. A dentist’s determination as to how to respond to this is entirely personal, and we do not comment upon or advise about this subject. We do note, however, that there are times when the first shot is the best shot, so overtures from patients in this regard ought to be taken seriously and listened to, considering what a patient’s subsequent actions might reasonably be, before making a decision. Once people involve attorneys, the situation changes dramatically.

A fair question often asked relates to the quality of care after the negligent treatment by the dentist. (“The negligent treatment by the dentist” here is what lawyers refer to as “law of the case.” This means that once a specific determination of negligence is made – whether by court ruling, as here, or jury verdict, or settlement agreement – it is an absolute which is no longer up for discussion legally, even though the dentist might view it otherwise.) In this case, C received reparative care of her laceration by immediate closure and a subsequent scar revision surgery. If, hypothetically, the unaesthetic result that displeased her were due to inadequacies on the part of the plastic surgeon, Dr. R would still be accountable for that end result, at least in most jurisdictions, because he set the proverbial negligence ball rolling, so he is responsible for all that reasonably follows, even subsequent negligence by another. That can be a bitter pill to swallow.

We end with the concept of an apology – as Dr. R offered to C – after an adverse outcome, which is a double-edged sword. On one hand, it is a human desire to want to let a patient know that there is compassion on the part of the dentist about things not having gone well. On the other hand, nobody wants that to encourage or support a lawsuit. There is strong data available which concludes that apology reduces both the frequency of lawsuits and the amount of money paid to plaintiffs. But the way that the apology is delivered matters a great deal. Expressing regret (e.g., “I’m sorry for what you’re going through”) conveys kindness, whereas certain expressions of remorse (e.g., “I’m sorry I made a mistake”) might be tantamount to an admission of liability.

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.