Patient With Periodontal Disease Sues Dentist After Refusing Treatment

Background Facts

L is a 49-year-old man, who smokes nearly a half pack of cigarettes per day and whose type II diabetes is reasonably well controlled with diet. He brushes his teeth each morning before work, rarely, if ever, flosses, and “cleans” his teeth before bedtime by rinsing with mouthwash. His general dentist, Dr. E, has treated him for roughly 20 years. L had little in the way of funds available for anything more than absolutely necessary dental care. Over time, he has had periodic prophylaxis, a few extractions of teeth that would have otherwise required endodontics and crowns, and a number of multi-surface restorations.
At each of the approximately yearly prophylaxis visits, Dr. E performed spot periodontal probings which generally progressed steadily from mostly 3-5 mm depths to 5-6 mm, and more recently to typically 7 mm depths with some up to 9 mm. No periodontal probe reading was ever written in the chart. Dr. E performed sub-gingival scalings throughout the mouth, and stated that he often advised L of his degenerating condition which ought to be evaluated and treated by a periodontist, with L refusing referral every time. But no such chart entry was ever made.

L moved out of the area due to a job change, and made his way to a new dentist, Dr. Y, on the recommendation of a new co-worker. Dr. Y offered a free examination and consultation with a full mouth series of radiographs to all new patients, and L availed himself of that. Dr. Y asked why, given the severe periodontal condition, L had not been under the care of a dentist, to which L, surprised, responded that he had been treating with Dr. E for decades. Dr. Y offhandedly said, “well, he hasn’t been doing you any favors. You need to immediately see a periodontist, and I think you’ll need to have about 8 teeth extracted, at least.”

Within a week, L saw the periodontist suggested by Dr. Y, who confirmed what Dr. Y had advised. The periodontist proposed open periodontal surgery with grafting in all 4 quadrants, with implants to be placed where teeth were to be lost, and then restored. L arranged for loans to cover the substantial costs ahead, and blamed Dr. E for letting his mouth get so bad, without doing anything about it. The periodontal, implant, and restorative treatments went forward throughout the next 10 months, and were completed to L’s satisfaction.

Legal Action

After the attorney retained by L filed suit against Dr. E, in which L sought compensation for his dental expenses and the pain and suffering he experienced, Dr. E’s assigned counsel met with Dr. E to discuss the case issues and then filed the necessary papers to begin the defense.

During the discovery stage of the litigation, L produced Dr. Y as an expert general dentist on his behalf. The thrust of Dr. Y’s position claiming that Dr. E was negligent, thereby causing the damages already discussed here, was that Dr. E had essentially overseen the slow, steady destruction of L’s dentition, doing nothing affirmative to help L and not referring L to a specialist, but instead allowing the degenerative process to progress, unabated.

In his deposition, L testified that he had been totally unaware of the problems in his mouth until Dr. Y told him, and that had he known, he would have done whatever was necessary, just as he did after becoming aware.

Dr. E was adamant during his testimony that he had given L virtually the same information as did Dr. Y, but L repeatedly refused because he could not afford to comply. When asked by L’s attorney what notes in the chart documented what he was now saying, he was unable to point to anything. Despite that, he remained steadfast that he had done nothing wrong, and exercised the “consent clause” of his malpractice policy which did not allow his malpractice carrier to settle without his consent. The trial jury was unconvinced of what Dr. E was asserting, solely because it was his word against that of L, and Dr. E had no corroborating chart entries. L was awarded all of his dental costs and an additional amount for the distress he claimed.

Takeaways

Enough cannot be said about the importance of documentation in dental practice. The old adage, “if it wasn’t written, it didn’t really happen,” is precisely demonstrated in this situation, and it clearly resonated with the jury. While unknown whether there would have been other factors for a similar jury verdict, solid documentation of the events Dr. E claimed would likely have taken away, at least to a great extent, the “he said-he said” aspect of this case. Broadly speaking, proper documentation is a fairly straightforward task: contemporaneously include appropriate, complete information about a patient visit such that another practitioner would be able to fully understand what took place, without ever speaking to anyone involved with the treatment. It is a critical component of successfully defending malpractice lawsuits.  

Jousting is not only a medieval game. In the world of professional malpractice litigation, it means the voiced and serious criticism to a patient about a prior dentist, by a dentist seen subsequently. The logical defect in the process lies with the fact that the subsequent dentist never stood in the shoes of the dentist being blamed during treatment times, not knowing what the doctor-patient dynamics were, and not having first-hand knowledge of the interactions between the doctor and patient. Nevertheless, it is a far from uncommon event among dentists, playing certainly some role in leading patients to sue their prior dentists. Why it seems to be so much more frequent in dentistry than in medicine is unknown, but the thought process of considering that is a worthwhile one. While it is true that dentists are ethically obligated to advise patients of their conditions, perhaps a less harsh method of providing that advice than words of the type chosen by Dr. Y might not leave patients with the sour taste that leads them to attorneys.

It is not the purpose of this case study to address proper quantities, methods, or frequencies   for periodontal evaluations, dental examinations, or radiographs. However, dentists who act in this regard by following thoughtful, tried-and-true approaches that match current science and literature will be better able to defend their actions if challenged by patients in malpractice lawsuits.
Finally, it is clear here that, accepting Dr. E’s version of the events, he acceded to the refusals of L, leading him to perform a lesser level of care than he knew to be best for the patient. While patients have every right to refuse treatment, dentists should not allow them to dictate to the dentist what s/he must do to meet their demands. A dentist might argue, as an opposing view, that some treatment is better than no treatment. That could be correct in some situations, but it might also encourage ignorance being bliss, thereby causing injury. As with nearly all patient-based situations, sound professional judgment must carry the day, and sometimes that might lead to stepping away.

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.