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Statute of Limitations Impacts Dental Lawsuit: What to Know

Case Study

Marc Leffler, DDS, Esq.
January 16, 2025

Reading time: 9 minutes

a child getting their teeth checked by a dentist.

Background Facts

An 11-year-old boy, J, was a patient of his pediatric dentist, Dr. P, since approximately age 4, as his parents were diligent in seeing to it that their son’s dental health was a priority. J’s secondary tooth eruption pattern emerged somewhat earlier than the usual, and it became evident to Dr. P, through clinical assessment and cephalometric analysis, that J was developing a bimaxillary protrusion. Having performed orthodontics as part of her practice for many years, Dr. P felt confident planning a course of action that would involve the extraction of 4 premolar teeth in conjunction with orthodontic intervention. After discussing the plan with J and his parents, all were in agreement that this approach was appropriate and it should go forward.

Dr. P stayed away from extracting permanent teeth, so she referred J to a local oral and maxillofacial surgeon, Dr. S, with whom she had an ongoing professional relationship for over 3 decades. While Dr. P had become fully digital in terms of recordkeeping, Dr. S had not, instead using paper, handwritten records. State X, in which both practiced, required that dental records be maintained for adult patients for a period of at least 6 years following patient discharge, and Dr. S was fully aware of that provision, but he was unaware of the longer requirement relating to the records of children. Given that, as with many oral surgeons, Dr. S saw a very large number of patients for a limited time period only, and because his physical patient charts took up much space in his office, he employed an outside, appropriately vetted service that would sort through his records on a biannual basis, and remove and shred all records for patients who had not been seen in at least 6 years.

Upon seeing J, Dr. S scheduled and later performed the extraction of all first premolars – with the consent of J’s parents – exactly as directed by Dr. P during a documented telephone conversation and on a written referral card. The extractions and their healing were uneventful, and Dr. P then proceeded to perform the orthodontics that had been planned. J was never fully pleased with the results, and as he headed to college, he became self-conscious about his dental and facial appearance. By this point, J, now nearly 19, was treated by a general dentist, Dr. G, to whom J expressed his cosmetic concerns. The general dentist shared those concerns and openly criticized the prior treatment plan, advising J that his earlier malocclusion had not been limited to his teeth, but also involved a skeletal deformity; therefore, according to Dr. G, J should not have had the orthodontic treatment that he did, instead deferring all treatment for several years until he could have had 2-jaw orthognathic surgery in conjunction with that orthodontics. Dr. G offered to refer J to an oral surgeon who could evaluate for and potentially perform the maxillary and mandibular surgery to correct J’s appearance, but J decided that he did not want to go through with that surgery while in college, although he remained unhappy with his appearance.

Legal Action

After speaking with his parents and transmitting what Dr. G had said, J opted to obtain an attorney to look into whether Dr. P had wrongly determined the extraction-orthodontics treatment plan, which she carried out in conjunction with Dr. S. The attorney requested complete sets of records from Drs. P and S, which would be reviewed by pediatric dentistry, orthodontics, and oral surgery experts retained by the attorney. Dr. P timely complied with the attorney’s request, but Dr. S was unable to do so, and so advised the attorney, as J’s records had been destroyed more than a year prior, in conformity with his usual practice methods.

Based solely upon their reviews of the records, radiographs and models from Dr. P, as well as those from Dr. G, the attorney’s team of experts agreed with Dr. G that J had been misdiagnosed as a dental, rather than skeletal, deformity case from the start, leading to improper treatment, thereby causing the unsatisfactory result. The attorneys, on behalf of J, filed a dental malpractice suit against Drs. P and S, claiming that they had been negligent in their respective treatments. The suit was timely because minors in State X are afforded a longer statute of limitations period than their adult counterparts, and this time period fell within that extension.

Discovery and Case Resolution

Both of the now-defendants notified their professional liability carriers, who assigned attorneys to represent Drs. P and S. In their Answers to the Complaint, both defense attorneys asserted that their clients had met the standard of care and were, therefore, not liable for the result that J had.

In that J’s attorneys had never received copies of Dr. S’s records, their first order of litigation business was to seek a court order from the presiding judge which mandated his providing those records to J’s attorneys. Dr. S’s attorneys admitted to the judge that the records were no longer available due to Dr. S’s process of purging old records from his office, but argued that his treatment was based solely upon the request of Dr. P, who was “quarterbacking” the orthodontic treatment, and that there were no complications which arose from the extractions. J’s attorneys responded that it would be prejudicially unfair of the court to force them into pursuing malpractice litigation against one of the defendants without the benefit of that defendant’s records, adding that the absence of those records was due solely to Dr. S’s failure to know and abide by the statutory requirement that the records of minor children needed to be retained in State X for a longer period of time than for adults. The court asked all counsel to provide legal briefs discussing all of these issues.

In those written arguments, J’s attorneys argued that Dr. S had spoliated (“destroyed”) the records which would have served as crucial evidence, and should therefore be sanctioned by holding him in default – effectively handing a litigation victory to J, as against Dr. S – or, in the alternative, reserving that ultimate decision for trial but at least advising that potential trial jury that its members might draw the strongest of inferences against Dr. S during deliberation. The court held that, in its view, while Dr. S had been negligent in failing to retain J’s records as statutorily required, he had no malicious intent in doing so at the time. Therefore, Dr. S would not be defaulted, but trial jurors would be affirmatively instructed by the court that they may properly infer from Dr. S’s actions that any or all of his conduct had been improper and that they may properly consider that impropriety in their considerations regarding Dr. S’s liability.

Dr. S’s attorneys advised their client of the severe and significant impact that this ruling might have, and that it may well inflame a jury against him to the point that they might even lash out at him through their verdict. Dr. S asked his attorneys to try to seek a settlement prior to trial, which they successfully did. Dr. P believed that she had acted entirely appropriately in her diagnosis and treatment plan, so she refused to settle and opted to go on to trial. (The trial of Dr. P is outside of the boundaries of this case study.) Despite the settlement, which J accepted but still believed was low in monetary value, J decided to file a disciplinary complaint against Dr. S regarding his premature destruction of his dental records. After investigation, the Dental Board found that Dr. S had violated the statute of State X, so it levied a significant fine against Dr. S, placed him on probation for 2 years, and required that he complete continuing dental education on the subject of dental records maintenance.

Takeaways

It goes without saying that dentists are not, and are not expected to be, legal experts regarding the issues which surround their practices. But there are certain principles about which they must maintain awareness, in order to protect the rights of their patients and to safeguard themselves. Among those principles are the maintenance and retention of dental records. While electronic records are relatively easy to keep – as computer hard drives, either internal or external, can be expanded so as to allow preservation compliance – handwritten paper charts can become unwieldy, especially in dental specialty practices in which patient numbers tend to be much greater than in primary dental care offices. It is not the purpose of this case study to suggest what types of recordkeeping dentists should employ, or how they should maintain records, but it is a purpose to point out that the time requirements are blind as to method when it comes to maintenance/retention time.

This case touches on the concept of statute of limitations, which in this context is the amount of time following a procedure or the carrying out of a treatment plan that is given to patients to begin a malpractice suit against treating dentists and dental specialists. Just as the time periods for maintenance and retention of dental records are State-specific, so are statutes of limitations, so it would do practitioners well to familiarize themselves with these requirements and allowances for each State (or District) in which they practice, in order to be sure that they are fully in compliance. If they are in doubt, they should contact their malpractice carrier or a personal attorney, but the failure to know and comply with the law is not an excuse, as Dr. S learned here.

The role of Dr. G’s voiced criticisms to J about his prior treatment should not go unaddressed. It would be difficult to argue that, without his denunciations of the care provided by Drs. P and S, the actions taken against those practitioners would have gone forward. We sometimes refer to such behavior as “jousting”, or the throwing under the bus of dentists by subsequent-treating fellow dentists. It is, unfortunately, common enough that we can reasonably conclude that a fair percentage of dental malpractice cases are initiated as a direct result of that type of critical commentary; why dentists so frequently engage as such is unknown, but it has seemingly become a component of the culture of dentistry. While the tenets of ethical dental practice do obligate dentists to point out to patients what they believe to be problematic conditions in and around their mouths, communication can be transmitted in less harsh ways, at least in part due to the immutable concept that the later dentist was not standing in the prior dentist’s shoes when certain decisions were made and treatments undertaken.

Finally, this case study demonstrates that lawsuits are only one method that patients may use when they are dissatisfied with dental treatment. Patients have the option – either instead of a suit, or in conjunction with a suit, or following the conclusion of a suit – to file complaints with a Dental Board. These Boards, as affiliates of licensing authorities, have powers that can extend from as little as letters of reprimand to revocation of licenses, so Board complaints must be taken very seriously and should, therefore, involve attorneys to represent the interests of the dentist under review; many malpractice policies provide for such legal representation. And even with a malpractice suit settlement agreement in place that provides for confidentiality, it is generally difficult, if not impossible, to prevent a patient from going forward and filing a complaint with a government authority.

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 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.

Dentists must stay informed on new guidelines regarding patients with planned joint replacement surgeries. In this case study, a dentist performs tooth extractions less than two weeks before the patient’s knee replacement. The orthopedic surgeon cancels the surgery upon learning about the extractions, explaining to the patient that there are new guidelines for the timing of such procedures. The patient complains to the dentist about their inconvenience and lack of awareness, but no legal action is ultimately taken.

Key Concepts

Staying informed on evolving dental guidelines
Understanding protocols for patients with joint replacements
The importance of documentation in dentistry

Background Facts

P knew, from years of being told by various dental professionals, that he needed a number of teeth extracted due to gross decay. He admittedly did not have regular and adequate home oral hygiene habits, often leaving him with plaque build-up throughout his mouth and several areas of calculus, particularly on his lower anterior teeth. With an elective knee replacement surgery coming up in 2 weeks, he thought that this would be a good time to have those teeth extracted, in large part because he had read some online information about knee surgery and the potential for mouth bacteria to spread to that surgical site and lead to knee prosthesis loss.

When Dr. N examined P, clinically and radiographically, she noted 8 teeth in need of extraction, in addition to a long-overdue prophylaxis. P made Dr. N aware of the upcoming knee surgery. She arranged for P to have a cleaning that same day, with the extractions to be completed in 3 days.

The extractions went forward uneventfully, leaving a week-and-a-half before the scheduled orthopedic surgery. P saw Dr. N post-operatively to check the extraction sites, 5 days before the knee was to be treated, and all appeared to be healing within normal limits, although a lone bone spicule was easily removed.

P met with his orthopedic surgeon, Dr. C, in the hospital's pre-surgical waiting area, where P casually mentioned that he had multiple dental extractions about 10 days prior, and the removal of a "small sliver of bone 5 days ago." Dr. C immediately canceled the knee replacement surgery and told P to contact his office to reschedule once there would be no further dental intervention in those sites. At P's request to understand more, Dr. C explained that current guidelines, which had "just taken effect," included that there be a waiting period between oral surgery procedures and certain elective joint surgeries. Frustrated at the situation – because he had taken time off from work, asked family members to rearrange their own schedules to assist him upon his return home, would now need to redo his pre-operative lab testing, and would have to again go through the stress in anticipation of surgery. P contacted Dr. N's office, asking to come in immediately.

Dr. N was surprised to see P, expecting that he would have been hospitalized and under his orthopedic surgeon's care. P angrily explained what had happened, with Dr. N listening intently. Dr. N said that she had been unaware of any protocols in place that would have led Dr. C to cancel surgery for a dental-based reason. Nevertheless, she apologized profusely, but P never returned to see her. P located another dental practitioner, who determined the extraction sites to be completely healed, roughly a month or so later. P underwent successful knee replacement surgery, albeit several months after initially planned, with no complications.

Legal Action

Still upset over the entire episode, P spoke with a cousin who is an attorney, as well as a local medical malpractice lawyer. Both gave him the same advice, namely that, although he had suffered from significant inconvenience due to Dr. N's lack of knowledge, he had no damages which would reasonably be compensable. The second attorney also pointed out that, even if Dr. N had been aware of the new protocol, the teeth were quite likely in need of extraction before the joint surgery anyway, so the orthopedist would have postponed the procedure in any event. All of P's frustrations would have, therefore, been essentially the same.

Understanding that suing Dr. N would only be able to happen if he represented himself, P sent her a letter requesting copies of his entire chart, and asking her to report the incident to her malpractice carrier, which she did. No further action was ever taken by P.

Takeaways

The "current guidelines" referenced by Dr. C came into effect in late 2024, by way of protocols jointly developed by the American Academy of Orthopedic Surgeons (AAOS), the American Dental Association, and several other organizations. By way of history, the use of antibiotics in association with dental procedures for patients with joint replacements was recommended until as recently as approximately 2012, when the guidance changed to consider discontinuing that practice. The current approach regarding the relationship between dentistry and joint replacements takes antibiotics out of the picture, and instead speaks to the timing of certain dental procedures, both before elective total joint arthroplasty (TJA) and after any TJA. The organizations involved carefully referred to them as guidelines, as compared with standards of care (SOC). But in a litigation setting, it is far from unforeseeable that an expert for a plaintiff might well incorporate the guidelines into their testified-to SOC, if the guidelines were not followed and a negative event ensued.

The new guidelines, briefly stated, are: (1) noninvasive and minimally invasive dental procedures can be performed until the day before elective TJA; (2) dental extractions and other oral surgery procedures should be completed at least 3 weeks before elective TJA (because they can be expected to take up to 3 weeks to heal); and (3) most dental procedures should be delayed – if possible – for 3 months after TJA. The goal, according to the co-chair of the guideline group, is to prevent infections that might emanate from dental procedures, due to bacterial entrance into the bloodstream, which can then attach to the new joint prosthesis, thereby infecting it.

Even though litigation never took place in this case study, it would not be unexpected to imagine that litigation might well have gone forward if the result to P were different. For example, if P had the TJA and then presented to Dr. N 1-2 months later, and if Dr. N had performed the extractions at that time (with both P and Dr. N unaware of the new guidelines), and if the joint prosthesis were then lost to infection due to bacteria commonly found in the mouth, an expert for P, as plaintiff, would be able to make a colorable argument that P suffered as a result of Dr. N not following a published guideline, namely the waiting for 3 months after the TJA to extract the teeth.

A fair reading of the guidelines leaves some room for interpretation, such as what constitutes “noninvasive and minimally invasive dental procedures,” and what dentistry fits under the umbrella of "most dental procedures." If unclear, a risk-protective approach is to directly involve the orthopedic surgeon, explaining what dentistry is planned, so that the surgeon replacing the joint can have input into the plan of action. In such situations, documentation of those communications is critical, in the event that a lawsuit or Board action were to later arise. A written plan – a letter, email, or text message – from the orthopedist is ideal, but absent that, a detailed, contemporaneous entry by the dentist/oral surgeon into the patient's chart will serve as a solid, if not perfect, memorialization.

With dentistry and medicine fronts expanding at a fast pace, and with technology fueling that expansion, sometimes seemingly overnight, the burdens upon dental professionals to stay up to date about all aspects of patient care can be daunting. But that is exactly what is required to practice within the standard of care. The fact that a dentist might not be aware of very recent, yet relevant, changes that directly affect their practice will not serve to excuse any lapses that occur as a result. An approach looked at today as up-to-date might be viewed as old-fashioned and outdated tomorrow. Here, although Dr. N was made aware of P's upcoming knee replacement surgery, she was not aware of the potential impact of her planned dental treatment upon that surgery. That directly and negatively affected P, but fortunately, in not very significant ways.

A question to consider is whether the patient, P, bears any responsibility for the events in this case, particularly by allowing his teeth to fall into such disrepair, all at his own hand, and for waiting until the virtual eve of knee surgery before seeking to address his dental problems. States vary in their handling of this type of issue during the course of litigation. But even when a particular jurisdiction allows for claims by the defendant against the plaintiff that might greatly reduce or completely eliminate monetary compensation, it becomes a strategic question for defense counsel (and the dentist's malpractice carrier) as to whether there is value in going down that road, with the specter of the potential for a jury to be angered by the attempt to "blame the victim." Litigation is a process that includes facts, law, strategy, ethics, and assessments of human nature, complex and intellectually stimulating.

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In dental practice, dealing with hard-to-please patients can be a challenge, but it’s important to approach them with care. In this case study, a dentist dismisses a difficult patient without taking the proper steps required by their state. In turn, the patient brings a malpractice claim and board complaint against the dentist.

Key Concepts

Handling difficult patients in dental practice
How jousting can lead to malpractice claims
Patient dismissal vs. abandonment

Underlying facts

V, a woman in her mid-50s, had been a patient in Dr. K's office for less than a year, having left her prior dentist because, as she described, they "simply couldn't get along with each other." When V first presented, Dr. K did not ask for any details about the issues with the prior dentist. The initial visits with Dr. K were routine, consisting of examination, radiographs, and prophylaxis, but no further treatment was required. More recently, V was struck in the face and upper anterior teeth with a tennis racket by her doubles partner. She came straight to see Dr. K, who determined that the fractures in teeth #8 and #9 warranted full coverage restorations after RCTs were completed.

The following week, Dr. K performed endodontic therapy on those teeth, inserted posts and cores, completed crown preparations, impressioned them, and placed temporary crowns. It was shortly after that when Dr. K got a sense as to why V might have split from her prior dentist. Every day over the next week-and-a-half, usually after hours, V called Dr. K on his cell phone, complaining about the aesthetics of the temps; each time, Dr. K explained to his patient that this was only a temporary situation, soon to be replaced by permanent crowns which would be much more cosmetically pleasing. When V presented to have the permanent crowns inserted, she expressed her unhappiness with the shade they had jointly chosen. Still, Dr. K encouraged her to "live with them" for a while, temporarily cemented, and then see how she felt.

The same telephone pattern continued, so Dr. K asked V to come into the office so that they could choose a new shade with even more of her input than originally. They agreed on a shade so that Dr. K could have his dental lab strip the porcelain and redo them with the new shade selected; Dr. K replaced the temporary crowns until the time when the "new" permanent crowns would be ready. V contacted Dr. K repeatedly, again complaining about how she "hated" the look of the temporary crowns. The new crowns arrived in the office, and Dr. K tried them in V's mouth. Now, she continued to complain about the "unnatural" shade, but she also did not like the crown shape. Dr. K asked his lab to, once again, redo the porcelain component with the newest chosen shade and also requested modification of the emergence profiles.

The third set of crowns were still unsatisfactory to V's eye, and she made that very clear to Dr. K. At a loss for how he could please his patient, Dr. K told V that he would leave the newest crowns temporarily cemented in place, but he would not continue to treat her; he followed the verbal dismissal with an email, in which he provided little detail as to why he discharged her or what she should do next.

V was able to find a new dentist, Dr. A, quickly. Dr. A commented to V that he thought the shade was far from ideal, and he was also quite critical of the shape and marginal integrity of Dr. K's crowns. Dr. A agreed to remake the crowns, but his fee would be a burden for V. A payment plan was worked out, with V obtaining yet another set of crowns, now from Dr. A, ultimately stating that "they're OK but not great."

Legal action

With her dissatisfaction growing, V looked into suing Dr. K to recover the additional expenses she paid to Dr. A, but she could not find an attorney willing to take her case. Instead, she filed a case in a local small claims court. She simultaneously filed a complaint with the State Dental Board, claiming that Dr. K had abandoned her as a patient when he dismissed her from his practice before ongoing treatment was completed. When V appeared in small claims court on her own, she was met by counsel for Dr. K, who had been assigned to defend him by his malpractice carrier; per his policy, Dr. K was entitled to defense counsel for malpractice claims, regardless of the level of the court.

V had been unable to convince Dr. A to testify as to treatment below the standard of care on the part of Dr. K, so the small claims court judge dismissed the case and advised V that plaintiffs claiming professional malpractice needed to have expert testimony to support such claims for them to maintain their actions. In response to V's request that the court simply evaluate the records of Dr. A, which demonstrated Dr. A's criticisms of the crowns that Dr. K had made and the need to remake them at her expense, the court stated that allowing a paper file to substitute for expert testimony would be unfair to Dr. K and his counsel because "you can't cross-examine a piece of paper." As they all left the court, Dr. K's counsel advised V that he would be defending Dr. K in the Board action she had filed.

The Dental Board's members, as well as the Board's attorney, interviewed V and Dr. K separately to learn each of their positions. V essentially repeated what she submitted in her initial written complaint. In his defense, Dr. K argued that he concluded after three attempts at crown fabrication and placement that he could not please V, regardless of what he might do. The Board's questioning focused less upon his reasons for dismissal than upon the way he did it.

After subsequent internal deliberations, the Board issued a written decision in which it faulted Dr. K for the inadequacies in his notice to V, citing to Dental Practice Act requirements for patient dismissal, so that it does not amount to abandonment: patients must be notified in writing of a dismissal, the reason(s) for that termination, the dentist's stated willingness to continue to treat the patient for a limited period in the event of dental emergencies, and the dentist's stated willingness to assist the patient in moving further care to another dentist. Because, in the Board's view, Dr. K did not abide by these obligations, his dismissal was deemed an abandonment. While the Board opted against levying a fine or any severe sanctions, they sent Dr. K a letter of reprimand, which would be posted indefinitely on the Board's website.

Takeaways

As a general proposition, but with wide variation, State Boards often act when they view a dentist's actions as constituting professional misconduct – sometimes stated as an ethics breach – although they are not limited in that regard; patient abandonment often fits that bill. Here, Dr. K faced a dilemma because he recognized that he had not yet completed the course of dental care he had begun, while also realizing that he did not believe that he would ever be able to satisfy his patient's stated desires and needs. Looking at the Board's conclusions at face value, there seems to have been an understanding and acceptance of Dr. K's predicament, but his approach to carrying out V's dismissal fell short of the statutory duty, namely failing to take the necessary steps and reducing that to writing for the patient's benefit. In the end, dentists should familiarize themselves, whether on their own or with the assistance of an attorney or their malpractice carrier, as to what their state's requirements are for proper patient dismissal and make certain that they abide by them. The risk of not doing so can result in a Board sanction, even when the basis for such a dismissal was appropriate. It is always necessary to make sure that patients are not harmed, even when releasing them from the practice where they had undergone treatment.

In this case, the subsequent dentist, Dr. A, voiced criticisms about the quality of the care of the prior dentist, Dr. K. That concept is often referred to as jousting, and it is a frequent driver of dental malpractice claims. While it is not uncommon, and not unexpected, that a subsequent treating dentist might look at prior-performed treatment and disagree with certain aspects of it, whether approach or performance itself – and dentists are ethically obligated to notify patients about all existing conditions they find – but how those findings and/or disagreements are expressed to patients can mean the difference between a lawsuit or Board complaint, or neither. The subsequent treating dentist is most often doing a look-back evaluation in a vacuum, without having stood in the prior dentist's shoes at the time treatment was carried out. Here, while Dr. A jousted against Dr. K, he ultimately refused to testify against Dr. K, thereby protecting him from the legal actions taken by a patient whom Dr. A had seen firsthand was a difficult patient to satisfy.

Finally, we briefly address claims brought in small claims courts rather than in traditional trial courts, in which juries are often seated. The rules vary greatly between states and even between jurisdictions within the same state, but it is safe to say that small claims courts usually have somewhat relaxed procedural rules. However, as the judge in this case demonstrated, at least in her courtroom, basic fairness protections would not be sacrificed at the expense of the defendant dentist. Our experience shows, though, that this is not an across-the-board method in small claims courts, so the preparation for defending small claims actions is not a place to take liberties, by sued dentists, their attorneys, and their malpractice carriers, even though the amount of money at issue is lower than in courts of "general jurisdiction."

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Key Concepts

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

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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