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Patient Dishonesty Leads to Unfounded Malpractice Claim

Case Study

Rawle & Henderson LLP, Marc R. Leffler, Esq., Partner, William S. Spiegel, Esq., Partner
January 16, 2025

Reading time: 10 minutes

In order to prove a case in dental malpractice, a plaintiff must demonstrate that there was negligence on the part of the dentist which directly caused, or was at least a substantial factor in causing, an injury or injuries. If any of those components is missing, the claim cannot stand; in other words, if there is no improper treatment, or if there are no demonstrable injuries, or if there is no connection between the treatment and the injuries, the dentist will be successful in defense.

Facts

A 45-year-old woman had been having pain associated with her lower right third molar (#32) for nearly a week; she had previously experienced the same problem over the years, but the pain resolved after a few days after an uptick in her oral hygiene. But this time was different. So, she went to her dentist, Dr. A, to complain, leading to a panoramic radiograph which showed the tooth to be partially impacted with a distal bony defect present on tooth #31, which was confirmed on clinical examination. Dr. A believed that extraction was the best treatment, given the history and the patient’s age; the patient was so uncomfortable that she was happy to hear that proposed solution.

Dr. A had spent several years working in hospitals, so he was well experienced with extractions of this type, and extractions became a regular part of his private practice. What was clear radiographically was the proximity of the root apices to the inferior alveolar canal, so the dentist carefully explained the potential for temporary, or even permanent, loss or alteration of feeling to the areas innervated by the inferior alveolar nerve. The patient was then presented with a detailed informed consent form, which she signed and dated before any aspect of treatment began. Later on, the patient acknowledged having been fully advised of all risks associated with the procedure, as well as viable options, so her initial case claim of lack of informed consent was dismissed by the court early on.

Under local anesthesia, tooth #32 was surgically extracted, seemingly without complication. During the 20-minute procedure, a bite block was placed on the contralateral occlusal surfaces to keep the masticatory muscles comfortable and to reduce the chance of TMJ injury. A silk suture was placed, post-extraction instructions were provided (including that she should refrain from smoking), and a prescription for analgesics was given.

On the second post-operative day, the patient experienced an increase in pain, so she called the dentist’s office; she was asked to come in to be checked, and she did so that afternoon. When Dr. A checked the area, he found a dry socket. So, he asked the patient whether she had been smoking, and she admitted to having done so. The dentist gently debrided the socket, packed the area with dry socket dressing, reiterated the warning against smoking, and told the patient that she should return for dressing changes at least every other day. The patient made no other complaints related to her mouth at that visit.

The patient returned quite often for dressing changes, still making no other complaints; her suture was removed one week after the extraction. During the first month, she presented to the office 12 times for dressing changes. At one of those visits, the dentist took an x-ray, which showed a clean site. At 35 days following the extraction, the patient complained, for the first time, that her lower right lip and chin were numb; she stated that the numbness had been that way since the day of extraction. When asked why she had not said anything about that before, she responded that the pain from the dry socket had been so bad that she simply complained of the most significant thing. Dr. A gently used a sharp explorer to try to determine whether there was any painful response, but the patient stated that she felt nothing on her lower right lip and chin areas when poked with the explorer. The dentist wanted to follow that situation, so he had the patient return for continuing dry socket dressing changes, and after that resolved, once a month. He told the patient that, if she did not have a return of feeling by 6 months after the extraction, she would be referred to an oral surgeon.

At nearly 3 months post-op, she made a new complaint: she was experiencing left side TMJ pain (which she attributed to the bite block used at surgery) which was ongoing since the time of the extraction, and which was making it difficult for her to chew. The dentist thought that it was best that she be sent to an oral surgeon at this point, to address the complaints of both numbness and joint pain. The patient became upset that she was being referred elsewhere, asking why Dr. A would do surgery if he was not able to handle post-surgery problems on his own. The dentist explained that he felt comfortable managing post-surgery problems, but when two arose at once, it would be better to have a specialist involved.

The patient never returned to Dr. A, and she ignored voicemails from his office asking whether she had gone to see an oral surgeon.

Legal Stance

The patient became a plaintiff when the attorney she retained filed a dental malpractice action on her behalf: the suit alleged an improperly performed extraction during which the inferior alveolar nerve was not protected, improper use of a bite block, and the failure to obtain informed consent. These issues of malpractice were claimed to have caused permanent injury to the right inferior alveolar nerve (IAN) and damage to the left TMJ complex. (As is noted above, the informed consent claim dropped out of the case.)

Issues Raised

As we commonly see in cases claiming paresthesia due to extractions, the method of extraction is of paramount importance because a properly performed extraction which led to nerve injury is normally not an adequate foundation for a successful dental malpractice case. A less common claim was raised here, that being that it was improper to place a bite block during the extraction, so as to cause a joint injury.

Discovery

In the state where this suit was brought, there is broad discovery permitted by the courts, meaning that attorneys for both the plaintiff and the defendant dentist are allowed to delve into any issue(s) that might at least reasonably lead to relevant evidence. What this practically results in are the (1) depositions of the plaintiff and defendant, as well as of key non-expert witnesses who can likely shed light on important issues of the case; (2) a physical examination of the plaintiff by a doctor of defense counsel’s choosing, which is limited to the damages claims; and (3) access to a generally wide array of the plaintiff’s dental and medical records, so long as defense counsel can demonstrate to the court that the records sought are not merely for a fishing expedition, but rather for an exploration of what the plaintiff might have reported — or not reported — to her seemingly unrelated medical providers.

Here, the plaintiff’s deposition was not overly helpful in areas beyond the usual inquiry into the plaintiff’s background and her version of the treatment timeline, including interactions with the defendant and others.

However, we had an oral surgeon who was familiar with issues relating to the TMJ and to nerve injuries examine the plaintiff. When challenged with various stimuli to the areas innervated by the IAN, she claimed that she could not feel the right side, but she could feel the left side; of course, this is subjective, so patient truthfulness is an important component of this type of examination (which is why we sometimes forego such examinations in claimed nerve injury cases, based upon how we view the plaintiff’s veracity). Regarding the claim of left-sided TMJ pain, she told our examining oral surgeon, and acted as such when asked to perform opening and lateral movements, that she could only open vertically to 25 mm when asked how wide she could open, but when the oral surgeon asked her (off-the-cuff, so to speak) to open so that he could view the back of the extraction site with a mouth mirror, she opened 45 mm without even a hint of discomfort. More importantly, regarding the left-sided TMJ pain, she claimed to be unable to move laterally, at all, to the left, but freely moved toward the right without any restriction. The written report of this examination was shared with counsel for the plaintiff, as is required.

What the plaintiff did not know is that, due to the functions and pulls of the lateral pterygoid muscles, patients are able to freely move toward the injured side, and prevented from moving to the opposite direction of injured TMJs. Without anyone intentionally setting it, the plaintiff fell into an anatomic trap, proving her to be untruthful regarding her TMJ claim, which immediately raised our awareness that, perhaps, she was also being untruthful about the nerve injury claim.

The plaintiff was a patient who saw doctors quite frequently, so the volume of medical records to be reviewed was enormous. However, we recognized that they could contain very valuable information. Roughly 18 months after the extraction at issue, the plaintiff saw her primary physician for a routine physical and blood studies: therein, her liver function tests were grossly abnormal, so her physician referred her to a hematologist for a work-up, and she went.

Luckily for us, and in conformity with good medical care, the hematologist obtained a complete medical history and conducted a thorough physical exam. In the history, within the section entitled “neurological”, the hematologist noted the history from the plaintiff, which included her statement of “no areas of numbness or altered sensation.” As helpful as that, alone, would have been for our case, during the physical exam, the hematologist conducted a neurological exam, in which it was noted “CNs (cranial nerves) II-XII intact.” Given that the IAN is within the third division of CN V, we knew, from a totally unrelated but authoritative source, that no nerve was injured, at least as of then.

Subsequently, and pursuant to a HIPAA authorization, we spoke with the hematologist. We explained the plaintiff’s claim in the suit and asked whether the notes of the history and physical were accurate. The hematologist responded to the effect of, “I never enter a patient chart note that is not complete and accurate. I see almost every patient with either a medical student or resident also present, so complete history taking, thorough examinations, and accurate chart entries are absolutes.” We made plans to have the hematologist testify at trial, if needed.

Trial

In the lead-up to trial, we explained to the plaintiff’s attorney that we strongly believed that the claimed injuries did not exist. The attorney did not accept our assessment, maintained a settlement demand value which we viewed as exorbitant, and wished to proceed to trial.

At trial, our client testified regarding his professional credentials, including his practice background, and the facts specific to this plaintiff. A key area of questioning against him, which was effective, focused on the concepts that oral surgeons are specifically trained to remove impacted teeth. As compared with general dentists such as he was, they are more familiar with handling complications (which the dentist clearly agreed with, as he had ultimately referred the plaintiff to an oral surgeon after two problems emerged), and despite his experience doing oral surgery, an oral surgeon with more experience might have taken different approaches and precautions to decrease the likelihood of complications. In all candor, plaintiff’s counsel seemed to have impressed the jury on the negligence aspect of the claim.

However, things turned around starkly during the cross-examination of the plaintiff’s expert witness. That expert acknowledged the anatomic and physiologic incongruities associated with the plaintiff’s claimed limitations and abilities relating to her TMJ and its muscular attachments, and essentially admitted that the plaintiff could not have been truthful when reporting her TMJ symptoms. It became even worse for the plaintiff when the expert was confronted with the hematologist’s records, which he had never previously reviewed, and was forced to admit that this unbiased, unrelated practitioner had essentially debunked the plaintiff’s claimed permanent nerve injury, based upon a history from the plaintiff and an examination which took place well after the subject extraction.

The jury quickly returned a verdict in favor of the dentist. One of the jurors, who was interviewed after, said that they completely disbelieved everything about the plaintiff’s claim once her own expert was painted into a corner.

Takeaways

For a plaintiff to win a dental malpractice case, every element of the claim must be met. So, an injury caused by proper treatment will lead to results in favor of the dentist. Of course, the true facts may not always appear from the start, so a deep dive into every aspect of litigation investigation must be undertaken in all cases, not only by the attorneys, but by the expert witnesses as well, because they are the witnesses who are usually the most critical to juries.

Very important from a risk management standpoint is the concept to always practice within your own abilities. Especially in office settings when young employee dentists are pushed to produce, but also in situations where such pressures are not externally placed, we often see litigation arising after dentists perform procedures for which they are not adequately trained, for which they have limited experience, or which they are trying to do as “a favor.”

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, dentists will discover how a rushed procedure, antibiotic selection, and non-clinical staff advice led to a malpractice lawsuit and patient harm. This article highlights the importance of informed consent, careful risk management, and keeping patient communications strictly professional.

Key Concepts

Antibiotic risks and complications in dental care
Non-clinical staff-patient communication
Patient choice vs. the standard of care

Underlying facts

D, a 26-year-old man, presented to an endodontist, Dr. Q, on referral of his family dentist, some 6-7 years following his having been struck in the face by a batted baseball. Over the past few months, tooth #8 had begun to darken and become episodically painful. Approximately a week prior to this visit, D developed a pea-sized swelling in the gingiva at the level of the tooth's apex. Radiographically, a periapical radiolucency on #8 was visible, and the tooth was non-vital. The endodontist suggested endodontic therapy, to which the patient agreed.

Upon entry into the pulp chamber, yellow, foul-smelling purulent discharge exuded through the tooth; the apical swelling immediately reduced in size. The tooth was thoroughly irrigated internally until no pus was visible. Because D was soon going out of town for work for several weeks, he asked the endodontist if she could "just finish it up" that same day, rather than returning a week later as Dr. Q had suggested. Dr. Q acceded. After the filing was completed, obturation with gutta percha was performed by Dr. Q, with the apical extent approximately 1mm short of the radiographic apex. NSAIDs were recommended as needed.

Two days later, D called the office and told the receptionist that he had a sudden increase in swelling and a low-grade fever; the receptionist reassured the patient by saying, "we see this all the time so it's nothing to worry about," without having consulted with Dr. Q. Three days after that, while still traveling and with the swelling now approaching the eye, D called the endodontist after hours and spoke directly with her; the patient reported an allergy to Penicillin, so Dr. Q called in a prescription for Clindamycin, which the patient started that same evening.

Now nine days after the initial treatment, the patient again called the office and spoke with Dr. Q, advising her that his facial swelling was much reduced and getting better continually, but he had spasmodic diarrhea; the endodontist told her patient that, as long as the dental symptoms were improving, which they were, he should continue and finish out the antibiotic and take over-the-counter anti-diarrheal medications. The patient did exactly that but ended up in a hospital emergency room a few days later for worsening and uncontrollable diarrhea with severe GI pain, where he was diagnosed with Clindamycin-induced pseudomembranous colitis. He was admitted for IV fluids/antibiotics and supportive care; he was monitored for a potential peritonitis, which never came to pass, and was discharged home after losing seven pounds. D was unable to secure the sales deal he had traveled for, as he was hospitalized during several scheduled meetings; the potential client made the transaction with another vendor.

Legal action

In addition to the physical upheaval that he had experienced, and the medical and hospital bills which were only partially covered by his insurance plan, D was mostly distressed by the fact that he had lost the opportunity for a large sale that he believed would have positioned him for an early-career promotion, with its associated salary increase. He sought out and retained an attorney.

The newly hired attorney forwarded the dental and medical records to two potential experts, an endodontist and a medical infectious diseases specialist. The endodontist was of the views: that under the existing conditions, the root canal treatment should not have been completed in one visit, but acknowledged that this was a judgment call such that other practitioners might well disagree; that if Dr. Q did agree to complete the procedure in one step, as she did, the prescribing of antibiotics at that time would have been preferred, but again recognized that some other endodontists would not agree; that Dr. Q's providing Clindamycin in the face of a potential Penicillin allergy, in a patient with a worsening infection and unable to be seen clinically, was an acceptable choice, although it was unclear whether Dr. Q adequately discussed the possible GI risks with D; and that the office receptionist was clearly and inappropriately acting beyond her non-professional status in providing the advice that she gave.

The medical expert confirmed that it was clearly the Clindamycin that was responsible for all of the GI symptoms experienced by D, as well as the hospital care that followed, and that the 3-day delay (and worsening infection) created by the receptionist's advice deprived both D and Dr. Q of the opportunity to have an antibiotic with less severe side effects than Clindamycin to have been used.

D's attorney opted for a simple litigation approach. On behalf of D, he filed suit against Dr. Q's practice entity – but not Dr. Q – based upon what the attorney viewed as strong arguments on both the liability and causation fronts as to the practice, with only "judgment call" issues available against Dr. Q. The damages claimed were the GI-based pain and suffering, the unpaid medical costs, the monetary values of the "lost" sale and the "loss" of salary increase. Given that Dr. Q's practice entity was covered for malpractice, the carrier provided defense counsel to put forth a defense for the practice, working with Dr. Q for that purpose, although not defending her personally.

After depositions were taken, the defense attorney applied to the Court to have the values of the lost sale and potential salary excluded from any potential damages able to be recovered. The Court agreed, determining those amounts to be entirely speculative, in that even if D would have had the chance to attend the meetings he missed, those were merely "opportunities,” so there is no way to prove that he would have been successful in his endeavor. The other claims in the case remained. Realizing the pitfalls of trying to defend the actions of the receptionist, Dr. Q and the practice's attorney, with the agreement of the carrier, worked toward and completed a settlement on behalf of the practice, for an amount which took care of expenses and physical pain and suffering, with no permanent after-effects, at a far lower value than had lost earnings been included.

Takeaways

In essence, D's expert endodontist determined that all of the actions taken by Dr. Q – the one-visit RCT, the non-prescribing of antibiotics at that time, and the choice of Clindamycin – were judgment calls, subject to opinions as to appropriateness on both sides of the fence, thereby leading D's attorney to refrain from pursuing those claims. [We note here that not all attorneys for plaintiffs would approach this in the same way.] Instead, the lawsuit was focused on what D's attorney viewed as a sole "winning argument," which was in fact the result. To reiterate a concept discussed in prior case studies, the general principle is that a plaintiff must prove through expert testimony that – with a general standard of "more likely than not" – a defendant dentist departed from good and accepted practice standards, thereby directly causing injury to the patient. For all issues except for the receptionist's involvement, the endodontist expert for D did not adequately meet that hurdle, at least in the eyes of D's attorney; the medical expert causally connected the receptionist's actions with the injuries to D.

There has been and continues to be controversy in the dental community regarding the use of Clindamycin. While its potentially severe side effects are well-publicized, it has therapeutic benefits as well: the classic double-edged sword. We do not comment upon the propriety of a given practitioner's choice to prescribe it in a particular situation, but just as with all choices, they are best made with a sound and deliberative thought process, so that a defense can be meaningfully put forward if untoward results come to pass.

As a side thought, we visit the issue of a case settling as against a practice entity versus the dentist him/herself; if such a potential ever exists during a malpractice case management, it is something to be coordinated between the dentist, liability carrier, and defense counsel. As a general rule, although potentially with exceptions, payments for professional liability against individual practitioners are reportable to national – and sometimes state – data banks and authorities, whereas those against an entity, as here, are not. To be clear, it is never a given that case resolutions of the type done here can always be made; to the contrary, it is not very common in the world of dental malpractice, with carriers constrained to do so only after an assessment that no specific provider bore any liability. But none of this negates the importance of dental practitioners assuring that dental/medical advice to patients must only be given by dental professionals, leaving only administrative tasks to non-professional staff members.

We end with a brief discussion about dentists acceding to performing procedures that patients "demand," even when those dentists do not believe that doing so is in those patients' best interests. Yes, patients have an absolute right to decide which of multiple alternatives they wish to pursue, but only if those alternatives are dentally and/or medically viable. Patients can refuse anything, but they should not dictate what a dentist must do.

Description / Intro

Ever wondered what happens when dentists step into sleep medicine without the right safeguards? This real-life case study shows how an Obstructive Sleep Apnea (OSA) treatment went wrong - leading to broken appliances, unexpected costs, a dental board complaint, and a malpractice claim.

Key Concepts

Practicing within your scope
Malpractice litigation which includes Dental Board findings
Attorney analysis in dental malpractice claims

Background facts

C presented to the dental office of Dr. M, based upon Dr. M's social media advertising that C's adult children had seen. At the time, C was 71 years old, obese with a large neck circumference, and, according to his wife, a frequent and loud snorer. Although retired, he often felt tired and struggled to get through the day without a nap. Upon meeting with his new patient, Dr. M expanded upon his online ads, explaining how he had managed many patients with sleep disorders that negatively and significantly had impacts upon their sleeping and waking lives. Dr. M initially suspected, based upon C's outward physical appearance and related history, that C was suffering from some degree of obstructive sleep apnea (OSA).

Dr. M did an oral examination, noting enlarged tonsils, a seemingly large tongue, dental wear consistent with bruxism, and mild mandibular retrognathia, all of which are frequent findings in patients with OSA. To work toward determining the validity of a presumptive OSA diagnosis, Dr. M suggested that C undergo home sleep apnea testing (HSAT) by using a kit that Dr. M was able to obtain from an overseas manufacturer and source. The process would involve C self-applying a device at home - just prior to going to sleep – with a number of sensors that measure parameters associated with assessing oxygenation, airflow, and breathing effort/patterns, among others. Dr. M explained that, if the OSA diagnosis was confirmed, he would be able to treat C dentally and reduce his life-disrupting symptoms. C was fully on board.

Dr. M obtained the HSAT device, instructed C on its use (which would involve applying it for only one night), and asked him to return upon its completion so that he could analyze the raw data. C did as he was asked, leading to Dr. M diagnosing what he characterized as "moderate to severe OSA." Dr. M fabricated an acrylic oral appliance to be worn while sleeping, the stated purpose of which was to pull the mandible and tongue forward, thereby opening the oral airway space and keeping it that way during sleep. After wearing the device for several weeks, C (and his wife) saw no benefits; rather, C was experiencing TMD-type muscle pain, which was new for him. Dr. M's response to C was that the process takes time, so he should continue on.

At approximately 3 months after the appliance was first used, C suddenly awoke to severe coughing and feeling a sharp edge on the appliance, which had clearly broken into pieces, likely (according to Dr. M's later statements) due to C's heavy bite and grinding. C was unable to locate some of the broken pieces, and he had persistent coughing and sharp pain in his throat. An emergency room physician determined that C had swallowed a few pieces of cracked acrylic; an endoscopy under general anesthesia was required for their removal, after which C remained hospitalized for a day, to be certain that there was no latent bleeding from the esophagus or stomach. His discomfort remained for some time, and he never returned to Dr. M for a new appliance to be made.

C submitted his bills to his medical and dental insurance carriers. While some of the hospital costs were covered, neither carrier reimbursed for Dr. M's fees, stating that Dr. M was not the type of provider fit to diagnose OSA without collaboration with a physician; as such, the high costs of the HSAT, the dental work-up, and the appliance had to be fully borne by C.

Legal action

C was upset about the costs that he had not anticipated, so he sought out a lawyer's opinion as to whether and how they could be recovered. In speaking with the attorney, the discussion led to C's "choking" experience, his hospitalization, and his subsequent discomfort.

Both agreed on an approach to sue Dr. M for dental malpractice (in fabricating the type of appliance that would be subject to breakage – and its consequences - due to C's known bruxing tendencies), and filing a Dental Board complaint, employing the concepts C heard from the insurance companies, that Dr. M had practiced beyond his lane. C's attorney was of the view that a Board finding against Dr. M, for essentially practicing outside of the dental profession's limits, would help the cause in the parallel malpractice case.

The attorney was correct. Following a Board hearing, at which Dr. M was represented by the attorney defending the malpractice case against him, Dr. M was sanctioned, with the Board determining that, in the State where Dr. M practiced, dentists are not permitted to diagnose OSA on their own, with that being solely within the purview of physicians; the Board reasoned that OSA is a medical (not dental) diagnosis, and while dentists may properly treat OSA using dental modalities, the process of testing and analyzing test results is not part of the practice of dentistry. Concerned about the potential impact of that finding by the Board upon a malpractice trial jury, Dr. M agreed with the suggestion of his attorney that the malpractice case should be settled, which it was. The monetary amount of settlement was modest, given that it was limited to the actual out-of-pocket medical and dental costs, a relatively small degree of pain, and the lack of any permanent injuries.

Takeaways

States might differ as to what they consider to be within the bounds of dentistry, and that might sometimes be even more tailored based upon specialty training and experience. As an example, treatment of the zygoma might be acceptable for an oral surgeon, but perhaps not for other dental practitioners. The bottom line is that dentists are wise to check into definitions of the "practice of dentistry" prior to engaging in areas outside of what is thought of as "traditional" dentistry. The same goes for related diagnostic testing, as explained in this case study by the Board. It is worth noting that it is far from unusual that an acrylic oral appliance might break due to occlusal stresses, which would most likely not be negligent (although it might be argued as such here in the face of C's bruxism); but bruxism aside, the difference here is that the breakage event took place as a by-product of – at least according to this Dental Board – a rule violation, which some lawyers might refer to as negligence per se, giving the malpractice case an entirely new complexion (, one that can be explored more deeply in a future case study).

Specifically with regard to the facts involved here, and as obvious as this sounds, OSA is a serious medical condition, with general systemic implications that go well beyond dentistry. If the facts of this case study were to have changed, such that, instead of the injury being a broken acrylic appliance and its associated complications, C had suffered an MI or a stroke as a result of inadequately addressed OSA that was thereby allowed to worsen, the results for both C and Dr. M could have been far more severe.

While often overlooked, a significant driver of malpractice claims is a money-based issue, whether it is fees seen by a patient as excessive, or non-reimbursement by a health insurance carrier (as here), or attempts by a dentist to collect unpaid fees, or unanticipated subsequent costs, or prolonged time out of work so as to cause loss of income. Looking below the surface, it is not necessarily only these financial considerations that come into play in malpractice lawsuits; they may well serve as the basis for a patient to seek legal counsel, which then extends to more avenues of investigation, which then leads to different and more components to the suit. Money disputes can spur a patient's initial actions, but they are often not the end of the story.

We end with some thoughts about the analytical processes engaged in by attorneys, who are significant players for both the patient-plaintiff and the dentist-defendant. Attorneys for plaintiffs, especially those who are seasoned, understand, and often apply a multi-pronged approach against dentists on behalf of their clients. That might be seen by some as a "whatever sticks to the wall" tactic, which can be distasteful to defendants. This is far from unusual, particularly at the start of cases; as cases mature, though, the stronger aspects remain, while the weaker ones fall away: the discovery component of litigation is a critical factor in developing the points of focus which will be the heart of the trial. C's attorney reasoned, in good faith (as attorneys are required to do), that the pressures placed by both a Board action and a malpractice suit would work to his client's benefit in the end; that is not always the case, either in approach or result, but defendant-dentists ought not be surprised if they find themselves on the receiving end.

Attorneys for defendants go through their own analyses, sometimes to answer strategies by their counterparts, but other times to steer the ship independently, which can effectively thwart the actions of plaintiffs' attorneys and take them away from planned techniques. The world of litigation is cat and mouse, working with facts, law, and personalities. All told, litigation styles are unique, with those employed in a given case needing to comport with the available facts, the law, and the people involved. It is complicated but rarely dull.

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In this case study, dentists will gain insight into how an inferior alveolar nerve injury following a routine mandibular block led to a malpractice lawsuit. These lessons underscore how clinical decisions and communication can significantly impact legal outcomes.

Key Concepts

Nerve injury after local anesthesia
Why informed consent matters
Depositions and malpractice defense

Underlying facts

Dr. L, a general dentist, had been treating Y, a middle-aged woman, for several years, handling all of her dental needs. Y was generally healthy, with her only stated medical concerns being medication- and diet-controlled diabetes. Y presented with a straightforward, albeit deep, occlusal carious lesion treated with a composite restoration.

Concerned that Y might feel discomfort during the procedure due to the depth of the caries, he opted to give her a mandibular block using a commonly used 4% local anesthetic solution. [We opt here to refrain from identifying any particular brand name.] Dr. L gave the block as he had done so many times in the past, using anatomic landmarks to reach the specific injection site and aspirating prior to releasing the anesthetic. Y did not react as though she felt anything untoward, and she soon reported being numb in the areas expected. Dr. L performed a Class I restoration, using a base following the removal of decay, and then placing the composite material he had planned. Y was discharged home shortly after.

The following morning, Y called the office asking why her lower lip on the side of the treatment remained profoundly numb. The receptionist was unable to provide an answer, so she left a note for Dr. L to return Y's call as soon as he finished treating his current patient. Dr. L was surprised by what Y explained to him, so he asked her to come to the office to see him, which she did two days later.

On examination, Dr. L confirmed that Y was experiencing paresthesia to the region innervated by the mandibular nerve; he explained to Y that, in his opinion, the problem was due to a lingering effect of the local anesthesia, as he had not done anything else that was even remotely close to any portion of that nerve or the broader trigeminal nerve. He followed Y for several months, finding no improvement, and eventually referred Y to see an oral surgeon at about the 4-month post-treatment mark.

The oral surgeon agreed that the issue likely arose from the injection, but offered Y no surgical or other resolution, saying that nerve injuries induced by anesthetic shots were not amenable to surgical repair – generally because there was no sectioned nerve that could be "put back together" – and because, without any pain component to the injury, no medications were indicated. Y never regained sensation. Y asked Dr. L why he never warned her about this possibility, and he responded that he had never discussed that risk with any patient unless he was about to perform surgery near a nerve branch.

Legal action

Dissatisfied with that answer, Y did some internet research, learning that she was not alone and locating a local attorney who had handled cases like this before. That attorney gathered the needed records and asked a dentist, with whom he had worked on litigation matters before, to assist Y. The dentist, soon to serve as Y's expert, concluded, in addition to an inadequate obtaining of informed consent, that the injury happened as a result of two possible scenarios, both of which were negligent: (1) that Dr. L used an anesthetic agent which was well-known to be implicated in leading to nerve injuries when used for mandibular blocks; or (2) that Dr. L was unaware of "safe versus danger zones" for the delivery of the solution. A dental malpractice lawsuit was begun against Dr. L, claiming lack of informed consent and negligence in the choice of anesthetic and/or its delivery.

A sworn deposition (a usual component of the discovery phase of dental malpractice cases) was taken of Dr. L by Y's attorney, in the presence of Dr. L's attorney. During that proceeding, Dr. L was asked why he did not advise Y of this potential risk, and he responded exactly as he had done a year prior when responding to Y's same question. He was then asked about his injection technique, providing a solid and detailed discussion about piercing the pterygomandibular raphe, contacting the medial aspect of the ramus, and then advancing the needle toward the lingula after pulling back from bony contact "a tiny bit", and then aspirating to determine that there was no vascular involvement, before slowly injecting the solution. A particularly adversarial portion of the deposition took place when the attorney asked Dr. L about his views regarding the use of the 4% solution of the anesthetic he employed: Dr. L was only minimally aware of the controversy within the dental community in that regard, so he was unable to fully justify his rationale for doing so.

Just prior to the trial, Y's attorney abandoned his claim based upon technical and anatomic deficiencies in the injection process, essentially due to Dr. L's strong deposition testimony on that issue, deciding upon going to the jury with the theories of lack of informed consent and the improper use of his chosen anesthetic agent. The expert on behalf of Dr. L, a dentist on school faculty, acknowledged that some dental schools did not permit the use of that specific anesthetic agent for blocks, even though his school did not have such a policy.

As was learned from attorney interviews with jurors after they rendered a verdict for Y, and awarded her a sizeable sum of money for her permanent injury, the members of the panel concluded from the testimony of Dr. L's expert that, if there were some dental schools that did not permit the anesthetic solution at issue for block injections, specifically because of the same potential result as occurred here, there had to be a good scientific basis for the theory presented. On the other hand, the jury rejected the notion of lack of informed consent in this situation, with 2 jurors individually saying, "I've had a number of those injections, and my dentist never said anything about a potential nerve injury." For the plaintiff to have been successful, as she was here, she needed to prove only one of her theories of malpractice that caused an injury.

Takeaways

This case speaks to the great importance of deposition testimony, both positively and negatively, toward the eventual case outcome; pre-trial testimony has the same force and effect as though it were elicited in a courtroom in front of a jury. Dr. L's demonstrated expertise regarding the technique of giving mandibular blocks, including his knowledge of the related anatomy, led to plaintiff's counsel dropping that claim from the case. Conversely, his lack of full understanding of the profession-wide debate about the propriety of using a particular anesthetic agent was arguably a significant factor in Y's attorney's choice of moving forward at trial in that direction and was clearly a critical consideration for the jury. The point to be made is that pre-deposition preparation, ideally in tandem with defense counsel, is critical to a case's ultimate result. When carriers who defend dental malpractice cases on a regular basis choose their defense counsel, those attorneys are expected to be fully familiar with all potential and actual case issues, so that they can best guide their dentist clients through every litigation step; but with or without the guidance of veteran defense counsel, defendant-dentists do well when they fully prepare themselves so as to best self-advocate.

As to whether a particular anesthetic solution – or in fact any dental product – is appropriate for patient use in a given situation, we do not provide opinions one way or the other, instead leaving that set of considerations solely in the hands of the treating dentist. We do suggest, however, that every "judgment call" determination be based upon principles that the dentist is able to justify, in the event that a lawsuit arises about it later on.

Finally, we discuss the concept of informed consent in the context of local anesthesia. Strictly speaking, patients are always entitled to be provided with foreseeable risks, planned procedure benefits, and viable alternatives before the start of any and every dental procedure. Simply because many dentists do not routinely engage their patients in such a process, as this jury concluded to be the case regarding local anesthesia, does not mean that the process is not warranted; and simply because this jury decided as it did does not necessarily mean that another similarly situated jury would not act otherwise. It might well be that a robust informed consent process is not particularly helpful for success on the business end of dental practice, so that internal battle is left to each dentist to work through for themselves, always keeping patients' best interests at the forefront. Informed consent is not solely a signed piece of paper titled "consent form," but instead an interactive process between dentist and patient; the paper merely memorializes that process.

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Key Concepts

Antibiotic risks and complications in dental care
Non-clinical staff-patient communication
Patient choice vs. the standard of care

Underlying facts

Legal action

Takeaways

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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.

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