Practice More Safely // Risk Tips // Patient Dishonesty Leads to Unfounded Malpractice Claim

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 real-life case study, dentists will see how a billing dispute and incomplete informed consent process escalated into a malpractice lawsuit. Learn why clear communication about treatment risks, accurate coding practices, and thoughtful handling of patient concerns are essential to reducing liability and protecting patient trust.

Key concepts

Dentist sued after a billing dispute and nerve injury
How informed consent gaps can increase malpractice risk
Why accurate coding and patient communication matter

Background facts

For Dr. A, extracting teeth was an everyday part of practice, as was virtually the entire scope of dentistry. In addition to postdoctoral training, she had been performing these procedures for years in a region of the state with no oral surgeons within a 2–3-hour drive. She was a participating provider in several dental insurance plans that were popular among her patients.

One such patient, P, was an 18-year-old high school senior who presented for an annual recall visit, with a new complaint of periodic pain associated with the lower right third molar. Despite P being of majority, his mother accompanied him into the treatment room to see Dr. A. Following a clinical examination, a panoramic film was taken and viewed by Dr. A. Tooth #32 was erupted, had incomplete apex formation, but was still in close radiographic proximity to the inferior alveolar canal. Dr. A assessed the pain to be a function of difficulty in cleansing the area, with inflamed gingivae as a result. She suggested, while pointing to the panoramic, extraction, which she said, "shouldn't be too hard,” although it carried a "slight risk of a nerve injury which could leave P's lower lip and chin numb, and rarely be permanent." This conversation was documented with specificity in the chart. P had heard about impacted wisdom teeth from a few friends, so he asked whether his tooth was impacted. Dr. A replied, "No, it is not.” P wanted to think about it, so he left the office with a sample of an oral rinse and instructions as to how to improve his oral hygiene. A month later, the symptoms persisted, so P's mother called the office to schedule an extraction appointment.

Before having local anesthetic injected, P was handed a paper entitled "consent form,” which he and his mother "briefly read.” The document contained a list of potential risks, including a general statement about possible "loss of sensation.” P signed the document prior to the extraction going forward. Dr. A worked on the tooth for well over an hour, much longer than she had anticipated, cutting out pieces of tooth and trimming away bone using round and fissure burs. P could taste blood, particularly at one point, which caused Dr. A to pack gauze in his mouth. The following day, P awoke to find the right half of his lower lip and chin numb, which he did not find surprising, given the warning beforehand, but so was the right half of his tongue, which was a surprise. At post-op visits, Dr. A assured and re-assured P and his mother that feeling would return to normal — it never did.

Separately, P received a bill for Dr. A's services from her billing office, seeking a co-pay for "#32 7240.” The amount was significant, despite Dr. A's advertised plan participation, so P's mother questioned the office manager as to what all of this meant. The response was that, according to the insurance plan's rules, Dr. A was permitted to charge that amount for fully impacted wisdom teeth, as this was. P's mother replied that Dr. A had specifically advised her and her son that the tooth was not impacted, no less fully so. The office manager spoke with Dr. A, but the answer came back that, because Dr. A had to work so long to remove the tooth, she was not willing to make any adjustments.

P's mother contacted the insurance carrier to explain the situation. The carrier requested a pre-treatment radiograph from Dr. A, based upon which the in-house reviewers concluded that the tooth was not appropriately coded as 7240, but rather should have been 7210 (surgical extraction of erupted tooth). Under the plan provisions, Dr. A was therefore not permitted to charge any co-pay but instead accept the plan payment in full. When the insurer notified Dr. A of that, with a copy sent to P's mother (whose employer provided the coverage), Dr. A was steadfast that she was entitled to the amount billed and would send P to collection if she was not paid. P's mother did pay the claimed balance, but the carrier dropped Dr. A from the panel due to what it referenced as "upcoding resulting in excessive billing.”

Legal action

P had slowly been adapting to the lip, chin, and tongue numbness, but his mother remained upset about the principle of billing her son and threatening a collection action, so she contacted an attorney. The attorney was not very familiar with dentistry in any legal regard, so he reached out to his own dentist, with a copy of Dr. A's records that he had been provided, to help him interpret what was going on. The dentist agreed with the insurance company's position that the extraction had been inappropriately upcoded, but perhaps more importantly that it was clear from the records that, while P had been warned of the possibility of an inferior alveolar nerve injury and its effects, he had not been told anything about tongue numbness, which came from an injury to an entirely different nerve branch and which should have been avoided if proper technique had been employed.

The attorney initiated a lawsuit against Dr. A, asserting lack of informed consent relating to the lingual nerve injury, dental malpractice regarding the causing of the lingual nerve injury, and breach of contract leading to the improperly billed (and collected) co-pay amount. The defense attorneys assigned to Dr. A by her malpractice carrier reviewed the case with their client and advised her that they would seek expert opinion as to the substance of the informed consent and malpractice claims, but that she would not be covered for the breach of contract claim, per a clearly stated policy exclusion.

The expert retained by Dr. A's counsel was provisionally willing to present a defense as to the malpractice claim regarding her having negligently caused the tongue numbness, but that position would need to be re-evaluated following her deposition testimony. However, there was no evidence in the record to demonstrate that she had provided any warning of a potential lingual nerve injury and its impacts. The defense expert did not see a pathway to successfully defend the claim of lack of informed consent. A second expert reviewer reached the same conclusion.

Dr. A's attorneys had a candid discussion with her. Even if the malpractice claim could likely be effectively defended, the lack of informed consent claim could not. So, P would be entitled to a monetary award regardless of which, or both, of the claims went P's way in the eyes of a jury. Dr. A agreed to have her attorneys seek to settle the claim, to be paid by the malpractice carrier, which they did. As part of the settlement agreement, Dr. A would personally return to P the amount his mother paid her for the co-pay.

Takeaways

While it is impossible to know whether P would have sought an attorney at some point to file an action on his behalf based upon the substantive dental issues, it is quite clear that the issue which drove the initial attorney involvement was the billed, and eventually paid, co-pay amount. There is then perhaps a bit of irony that the money that Dr. A was unwilling to waive directly led to a settled malpractice claim, but that insisted-upon co-pay not only started the legal action steps but was also ultimately paid by Dr. A out-of-pocket. Dr. A made the decision to demand a disputed amount of money, and that decision likely cost her far more — particularly with her being dropped from a panel — than had she acquiesced in the first place. It is not our role here to advise dentists as to whether they should fervently go after unpaid, disputed fees. Instead, we demonstrate a situation where doing so ended up causing more harm than benefit. Food for thought.

Experience teaches that lay jurors might not always understand scientific, dental facts, sometimes making their determinations counter to what experts and attorneys anticipate. On the other hand, issues relating to overbilling or upcoding are relatively straightforward for plaintiffs' attorneys to explain to jurors, and simple for them to understand. At times, jurors might put all else aside and render a verdict for a plaintiff if they do not see the defendant-dentist as having been honest. Such is a version of jury nullification, with the jury members substituting what they deem critical in place of what the law says is critical. Taking subjectivity of that type out of the hands of juries increases a defendant's chances for success.

This case study exemplifies how the trigger for a patient seeking legal counsel might have nothing at all to do with the quality of dentistry. Yes, dentistry is complex, and there is an ever-present unpredictability factor, so ideal results do not happen with every procedure, with every patient. What need not be complex are matters over which dentists and their staff members have full control — such matters can virtually always be taken out of the equation as to what starts the legal ball rolling.

Finally, we briefly address the coding of procedures for billing purposes. The ADA and perhaps other associations provide numerical codes for dental procedures, which state the procedure performed and which often serve as the basis for which payment is sought and made. With few exceptions — such as 7241 for full impactions with unusual surgical complications, or time under sedation/general anesthesia, as examples — procedure codes do not take into account the length of time required to complete or the difficulty in doing so. To upcode to a procedure not actually performed, for a higher fee, is to invite a host of problems, including the initiation of a malpractice lawsuit or Dental Board complaint.

Summary of takeaways

A signed consent form alone is not enough — patients should also be verbally informed of all risks, benefits and alternatives associated with a procedure, by way of back and forth conversations, and those discussions should be thoroughly documented.
Billing disputes and inaccurate procedure coding can damage patient trust and may become the catalyst for malpractice claims.
Upcoding procedures can result in payer disputes, loss of network participation, regulatory concerns, and increased legal exposure.

Dentists will learn how sedation missteps can lead to a malpractice claim and Dental Board action. This case highlights why understanding state sedation requirements, assessing patient risk, and preparing for emergencies are essential to managing malpractice risk.

Key concepts

Dentist sued after unpermitted sedation led to a medical emergency
Dental Board action tied to state sedation permit requirements
Why patient risk factors matter before providing sedation

Underlying facts

K was a 47-year-old man, who has been an asthmatic for all of his life. His medication regimen has changed over the years — to include, at times, corticosteroids, biologics, and rescue inhalers. At the time of his subject series of visits with Dr. F, K's long-time general dentist, he reported taking daily steroids and an occasional need for the inhaler, with asthmatic flare-ups not uncommon. K had skipped seeing any dentist for some time, so Dr. F found 3 carious lesions in the left posterior for which endodontic care was indicated, and he advised his patient of exactly that.

For some reason, K explained, he had developed a fear of dentistry, the reason he had stayed away, and the prospect of root canal therapy, in 3 teeth, was daunting. Dr. F told his patient that, while he does not often do so, he would prescribe an oral sedative to be taken shortly before each of the 3 procedures, as an adjunct to nitrous oxide/oxygen ("laughing gas") given through a nasal hood. K agreed to try that approach, and filled the prescription given to him.

Just before being driven to the dental office on a relatively humid day by his young adult daughter, K took 2 of the tablets — rather than one, as prescribed — and arrived in a surprisingly relaxed state. When Dr. F peeked into the waiting room, he asked "did you take the medication?" "Yes I did." K was soon seated by Dr. F's assistant, who placed the hood and dialed in N2O/O2 at 5 liters per minute and a 70%/30% ratio, all of which was Dr. F's custom.

When Dr. F entered the treatment room, he briefly made small talk with K before delivering a mandibular block and infiltration. K winced and became visibly upset, which led to his beginning to show difficulty in air exchange. Dr. F asked the assistant for a pulse oximeter, but it could not be located. Dr. F switched the gas flow to 100% oxygen, but he had no means of delivering it with positive pressure. K deteriorated, with his lips becoming bluish, and his respiratory efforts becoming more and more futile. The receptionist heard the commotion, came to see what was happening, and called 911; EMS came 17 minutes later, by which time K was breathing poorly and minimally conscious. With telephone instructions from an emergency department physician, a paramedic started an IV line and injected a muscle relaxant while an EMT squeezed oxygen through an Ambu bag, slowly raising the O2 saturation from 73% to 92%.

K was transported to the hospital, where he was admitted for 4 days, undergoing a complete pulmonology work-up and medication regimen modification. K was left with large ambulance and hospital bills, for which no health insurance was in place, owing to his being new to his current job, which he could not attend for another 2 weeks, unpaid.

Legal steps taken

Intimidated by the amount of money he owed, K sought legal advice, and was counseled that suing Dr. F might cover his expenses and lost earnings, as well as money to compensate him for his physical and emotional injuries. The newly retained attorney obtained copies of the records from Dr. F, the ambulance, and the hospital, and sent them to dental and internal medicine experts for their input. The dental expert knew that dentists in that State were required to obtain a permit for providing sedation at any level, including orally, with predicates to obtaining the permit being (1) an office assessment by 2 dentists from the State Dental Board, to assure that resuscitation equipment and drugs were available and functional, as well as (2) basic life support certification for the dentist and at least 1 present staff member (or ACLS for the dentist for deeper levels of sedation), and (3) doctoral or post-doctoral training in sedation techniques. Dr. F was not aware of any of these requirements, so, as the dental expert found on publicly available platforms, Dr. F had never applied for a permit; in fact, neither he nor any staff member was current with BLS certification.

In addition to filing a dental malpractice lawsuit against Dr. F, K, with his lawyer's help, filed a Dental Board complaint. In his response to the complaint, one of the arguments posed by the attorneys provided to Dr. F by his malpractice insurer was that Dr. F had not intended to do more than simply "take the edge off,” and it was K's own action, by taking a higher medication dose than prescribed, that led to a deeper level of sedation and the apparent laryngospasm that flowed from that. The Board was unmoved: the statute set out strict requirements, for any level of sedation, with the dose provided by Dr. F falling into that category; Dr. F had violated that statute. The Board levied monetary sanctions and a stayed 6-month suspension from practice.

The Board's findings and actions, which would likely make their way to a trial jury in that jurisdiction, made the malpractice defense a steep uphill battle. A settlement followed, compensating K for both economic (medical costs, lost income) and non-economic ("pain and suffering") damages.

Takeaways

The old adage that "ignorance of the law is no excuse" clearly applies here. While dentists are not expected to have the degree of understanding of laws that lawyers do, they are expected to know and abide by the parameters of their State's Dental Practice Act; there is simply no getting around that. With this is mind, had the case proceeded to trial, it is foreseeable to believe that a legal principle known as negligence per se would have come into play: in basic terms, when a person violates a statute which is intended to protect the public safety, and that violation causes an injury, there is essentially a presumption of negligence/malpractice. Here, Dr. F's failure to obtain the needed permit is quite readily argued to have caused K's injuries, based upon the facts that his training was inadequate and his resuscitative inventory was lacking, leading directly to the inability to protect K's safety. Legally, negligence per se provides what amounts to a short cut for plaintiffs, yet one which is avoidable.

Readers might wonder whether K's own improper action, namely taking twice the prescribed dose, could have alleviated Dr. F's liability, or at least a portion of it. The answer is maybe. When a settlement is made, as it was here, all of the potential legal arguments go away. But if the litigation had proceeded, and depending upon the State and locality involved, a jury might have been able to consider K's impropriety and reduce, or even possibly eliminate, Dr. F's liability. Taking that approach at trial is viewed by some lawyers as risky because jurors might see it as trying to blame the victim; but that does not mean that such a tactic does not ever occur, because it most certainly does. It ends up as a judgment call on trial strategy, left for lawyers to discuss with their clients, with a typical risk-benefit analysis playing a major role.

An issue underlying the facts in this case is the existing medical condition of K, as of the time of the procedure. He was a known, disclosed asthmatic, whose various medication regimens signaled a significant level of disease. Most practitioners would likely agree that such patients pose a higher risk profile when it comes to sedation, to any degree, such that a host of factors need to be considered beyond the "usual.” In terms of strict ASA classification, K would be viewed — based solely on his asthma condition — as a Class II (if the asthma was judged to be well controlled with management of it on an as-needed basis) or Class III (if the asthma was viewed as not being well controlled, with frequent episodes and constant treatment required) patient. Of course, there is subjectivity involved with assigning patients into these groups, but objective assessments ought to be used to guide the conclusion.

Finally, we address a defense that Dr. F raised with the Board, namely the level of sedation that was intended for K, rather than the one achieved. In some States, that difference might be determinative, but in the State of Dr. F's practice, that difference was irrelevant. Either way, it is a universal given that dose X of drug Y will necessarily produce different sedative results in different patients, even if nominally but potentially largely so; dentists are prudent to realize that sedative end points are unpredictable, that patients might become more deeply sedated than intended, that patients might have side effects generally associated with the deeper level, and that the dentist must be appropriately trained and otherwise prepared to handle even low likelihood, but severe, risk manifestations. There is often little room for error when a patient's state of consciousness is altered.

Summary of takeaways

Dentists are expected to know and follow their state’s sedation requirements.
Patient-specific risk factors can increase sedation-related liability.
Sedation outcomes can be unpredictable, so emergency readiness is essential.

[post_title] => How Unpermitted Sedation Led to a Dental Malpractice Claim [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => how-unpermitted-sedation-led-to-a-dental-malpractice-claim [to_ping] => [pinged] => [post_modified] => 2026-07-30 11:16:44 [post_modified_gmt] => 2026-07-30 15:16:44 [post_content_filtered] => [post_parent] => 0 [guid] => https://medprodental.com/?p=10667 [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) [2] => WP_Post Object ( [ID] => 10633 [post_author] => 180159412 [post_date] => 2026-06-08 15:18:38 [post_date_gmt] => 2026-06-08 19:18:38 [post_content] =>

In this real-life case study, dentists will learn how a swallowed crown can quickly become a patient safety event and lead to a malpractice claim. See why prevention, timely follow-up, and patient communication are essential aspects of reducing risk.

Key Concepts

Swallowed crown led to malpractice lawsuit
Preventive steps to reduce swallow or aspiration risk
Compassionate communication and risk management

Background facts

E, a 64-year-old man who was markedly obese with type II diabetes and atrial fibrillation, presented for the insertion visit of a PFM crown on his upper right second molar, tooth #2. Getting to that point had been far from easy for both E and Dr. M, owing to limited opening ability and an excess of facial soft tissue. Preparation for the crown and impressioning had each taken a full visit for the very same reasons. Suffice it to say, as Dr. M later did, there was very little room to work in E's mouth. No local anesthesia was given for this visit; as Dr. M placed the crown for what would be the final try-in, his finger incidentally made contact with E's soft palate, causing him to gag and unexpectedly move forcefully, which then caused the crown to slip out of Dr. M's wet gloved hand, and out of sight. Dr. M, an experienced practitioner nearing the end of his career, who liked to work "solo", called an assistant into the room to suction the oropharynx of the supine patient, with the hope of finding the crown tucked into a tissue fold. The crown was not found.

Dr. M explained that he would need to take another impression because the crown had "slipped behind the mouth"; he did just that over the next hour. As E was being dismissed, Dr. M said that the crown will work its way down the intestines, to be voided in the stool: E should inspect his stool over the following few days, to the extent reasonable, but he shouldn't overly worry about it. E left the office, expecting to return in 10 days for the new crown to be inserted.

On the fourth day after this visit, E noticed that his stool was blood-tinged, so he called Dr. M to learn whether that might be related to the dropped crown, but Dr. M did not think so. He did, though, advise E to speak with his primary care physician if things worsened or even remained the same. The stool got redder toward the end of the week, so, that Sunday, he appeared at an urgent care center, where, upon hearing about the dental crown incident, the physician ordered an abdominal series of radiographs, which located the crown, appearing to be stuck in place at a sharp bend in E's colon. Arrangements were made for E to have a colonoscopy the following morning at a local hospital, where E was admitted for the night.

Under deep sedation, a gastroenterologist removed the crown from the colon by using a grabbing instrument. When the crown was examined after removal, the gastroenterologist reasoned that the metal edge of the crown that projected below the porcelain portion — the margin — had likely dug its way just a small amount into a fold in the wall of the colon, preventing it from moving beyond that point to be expelled. Because of E's underlying medical conditions, he was kept in the hospital until the next day, at which time he was discharged without any problems or complications.

Legal action

Although E was willing to let the situation end without any further action, his wife was particularly annoyed about the hospital, anesthesiology, and gastroenterology fees, which were not covered by E's high-deductible medical insurance policy, as well as what she viewed as Dr. M's lack of caring, as demonstrated by his having never followed up with E about what had occurred.

An attorney was brought on board to sue Dr. M for dental malpractice, so that the out-of-pocket costs and a sum for pain and suffering could be recovered. The attorney's first step was to contact Dr. M's malpractice carrier, specifically its regional claims consultant. When all records were obtained and reviewed, the claims consultant explained to Dr. M that a supportive defense expert was unable to be located, even by a local defense attorney, so that a liability defense could not be mounted, other than by way of Dr. M acting as his own liability expert.

Dr. M realized that this was far from an ideal approach, so he agreed to attempts to settle the case, which was accomplished for a relatively modest amount of money.

Takeaways

Under the best of circumstances, maintaining a grip on small objects placed in the mouth, using wet gloves, is fraught with the risk of losing control of the object — here a crown. When treatment is performed in the back of the mouth, that risk is magnified, and when the patient's anatomy makes the working space smaller than usual, the risk further increases. Adding to that, the gravitational considerations of a supine (rather than upright) patient maximize the likelihood of a dropped object being swallowed or aspirated. Each of these "weak points" can generally be mitigated: oropharyngeal packs are placed to try to physically block the backward and downward path, particularly when rubber dam cannot be used; working with a watchful, suctioning chairside assistant provides extra hands, extra eyes and extra protective devices; and seating a patient in as upright a position as possible can mean the difference between a dropped object falling harmlessly into the floor of mouth where it is easily retrievable, and a swallow/aspiration event.

Any and every time that an object is placed into the mouth, or one becomes free-floating in the mouth, and cannot be accounted for, it should be assumed to have been swallowed or aspirated unless proven otherwise, generally by radiographic evidence either way. As a general rule, the sooner the patient is able to be placed into the care of medical colleagues for locating and treating, the less the ramifications will be. That does not necessarily mean that dental procedures must always be stopped in their tracks, but it does mean that, as soon as it is safe for the patient to move on for definitive care, the better off they will usually be. Because physicians are often less than fully aware of dental materials and instruments, it is helpful to them if a photo example, or actual example, is provided to the patient to pass on to their physicians, so that they know exactly what they are looking to locate.

Two considerations which quite often lead patients to seek legal advice are unexpected and unreimbursed costs, and a perception that their dentist did not truly care about them, particularly when things did not go as planned. The former is unpredictable, and it ended up here as one of the main drivers toward legal action, but the latter can almost always be avoided. Prompt and repeated follow-up communication, by the dentist, rather than an office staff member, with patients; and demonstrating a genuine interest in patients, as people and not only "receivers of dentistry"; can go a long way toward heading off involvement of lawyers.

Not all patients and not all similar procedures are the same, whether because of underlying medical issues, patient anatomy, patient size, patient attitudes, or limited mobility. So, a one-size-fits-all approach is rarely, if ever, a helpful treatment mindset to adopt.

Finally, we address the circumstance here, where no liability expert could be found to help to defend Dr. M. While not very common in the defense of dental malpractice claims, it does occasionally pop up. In most, if not all, jurisdictions, dentists are legally permitted to serve as their own experts. But in the eyes of jurors, that is often a difficult sell. In this situation, as well as all other litigation-related issues, dentists are counseled by their defense attorneys, whether the news is easy to hear, or not.

Summary of takeaways:

Take an objective, measured approach to patient communication
Avoid criticizing prior care without full context
Maintain thorough documentation to support care decisions

[post_title] => How a Dropped Crown Led to a Malpractice Lawsuit [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => how-a-dropped-crown-led-to-a-malpractice-lawsuit [to_ping] => [pinged] => [post_modified] => 2026-06-10 06:35:05 [post_modified_gmt] => 2026-06-10 10:35:05 [post_content_filtered] => [post_parent] => 0 [guid] => https://medprodental.com/?p=10633 [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) ) [post_count] => 3 [current_post] => -1 [before_loop] => 1 [in_the_loop] => [post] => WP_Post Object ( [ID] => 10718 [post_author] => 180159417 [post_date] => 2026-08-17 02:07:45 [post_date_gmt] => 2026-08-17 06:07:45 [post_content] =>

Key concepts

Dentist sued after a billing dispute and nerve injury
How informed consent gaps can increase malpractice risk
Why accurate coding and patient communication matter

Background facts

Legal action

Takeaways

Summary of takeaways

A signed consent form alone is not enough — patients should also be verbally informed of all risks, benefits and alternatives associated with a procedure, by way of back and forth conversations, and those discussions should be thoroughly documented.
Billing disputes and inaccurate procedure coding can damage patient trust and may become the catalyst for malpractice claims.
Upcoding procedures can result in payer disputes, loss of network participation, regulatory concerns, and increased legal exposure.

[post_title] => Billing Dispute and Consent Issues Lead to Malpractice Lawsuit [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => billing-dispute-and-consent-issues-lead-to-malpractice-lawsuit [to_ping] => [pinged] => [post_modified] => 2026-08-27 12:28:03 [post_modified_gmt] => 2026-08-27 16:28:03 [post_content_filtered] => [post_parent] => 0 [guid] => https://medprodental.com/?p=10718 [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) [comment_count] => 0 [current_comment] => -1 [found_posts] => 84 [max_num_pages] => 28 [max_num_comment_pages] => 0 [is_single] => [is_preview] => [is_page] => [is_archive] => 1 [is_date] => [is_year] => [is_month] => [is_day] => [is_time] => [is_author] => [is_category] => 1 [is_tag] => [is_tax] => [is_search] => [is_feed] => [is_comment_feed] => [is_trackback] => [is_home] => [is_privacy_policy] => [is_404] => [is_embed] => [is_paged] => [is_admin] => [is_attachment] => [is_singular] => [is_robots] => [is_favicon] => [is_posts_page] => [is_post_type_archive] => [query_vars_hash:WP_Query:private] => cabe8c2b623648fe0583eab1a4c8603c [query_vars_changed:WP_Query:private] => [thumbnails_cached] => [allow_query_attachment_by_filename:protected] => [stopwords:WP_Query:private] => [compat_fields:WP_Query:private] => Array ( [0] => query_vars_hash [1] => query_vars_changed ) [compat_methods:WP_Query:private] => Array ( [0] => init_query_flags [1] => parse_tax_query ) [query_cache_key:WP_Query:private] => wp_query:9f3e5079becec4eb1545fa9e64c1031d )

Additional Risk Tips content

Billing Dispute and Consent Issues Lead to Malpractice Lawsuit

See how a billing dispute, upcoding concerns, and informed consent gaps led to a dental malpractice lawsuit and costly legal consequences.

How Unpermitted Sedation Led to a Dental Malpractice Claim

This dental malpractice case study shows how unpermitted sedation, patient risk factors, and emergency preparedness gaps led to a claim and Dental Board action.

How a Dropped Crown Led to a Malpractice Lawsuit

A dropped crown became a malpractice claim. Learn how prevention, follow-up, and patient communication can help reduce dental risk.

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.

MedPro Group is the marketing name used to refer to the insurance operations of The Medical Protective Company, Princeton Insurance Company, PLICO, Inc. and MedPro RRG Risk Retention Group. All insurance products are underwritten and administered by these and other Berkshire Hathaway affiliates, including National Fire & Marine Insurance Company. Product availability is based upon business and/or regulatory approval and/or may differ among companies.