[DRAFT] Malpractice Minute – Complex Orthodontics Case by a Pediatric Dentist

Malpractice Minute

Dental Case Study: Complex Orthodontics Case by a Pediatric Dentist

Marc Leffler, DDS, Esq. – TBD

Background facts

An 11-year-old boy presented with his father to a dental office in which 2 general dentists and a pediatric dentist practiced. The patient and his father met initially with a general dentist (the practice owner) to address the chief complaint of being “unhappy with how the teeth fit together”. On examination, the patient had a bimaxillary protrusion with a mixed dentition. The general dentist saw this as an orthodontics case, so he referred the patient to the pediatric dentist in the office.

The pediatric dentist (we’ll call him Dr. A) had completed his university-based specialty training about 2 years prior, during which he had been involved with 6 orthodontics cases under the supervision of orthodontists. Since going into private practice, he had completed 2 pediatric orthodontics cases and another was close to conclusion. None of those cases included the extraction of any teeth for space-gaining purposes.

Dr. A evaluated the patient clinically, as well as with panoramic and lateral cephalometric radiographs, and study models. He determined that the best treatment was to extract 4 bicuspids and then close the spaces created with full-arch orthodontics. Dr. A met with both parents and their child to discuss the plan, his view as to why the extractions were necessary as compared with realigning the teeth without extractions, the anticipated treatment time of 18-24 months, with retention following, and the fees. After considering for 2 weeks what Dr. A had discussed with them, the parents and the patient agreed to proceed. A written consent form setting all of this out was explained to — and signed by — the patient’s mother.

Dr. A asked the same general dentist (we’ll call him Dr. B) to perform the extractions of the 4 bicuspids, and documented that request clearly in the chart, specifying the reason. The extractions were performed uneventfully. After the initial post-extraction healing period, the patient returned for Dr. A to place upper and lower bands and brackets, and then wires, so that treatment to reduce the anterior proclination and close the now-edentulous bicuspid spaces could begin.

Several months into treatment, the parents received word from their dental insurance carrier that orthodontics was not covered under their plan. So, they asked the practice owner for a fee reduction, but he refused after what was later described as a “contentious discussion”. The parents were so upset that they decided to leave the practice, and took their son to see an orthodontist (we’ll call her Dr. C).

After performing her own work-up, Dr. C advised the parents that the extraction of the 4 teeth was not necessary, that the proclined upper and lower anterior teeth would best be “verticalized” without closing the edentulous spaces, and that the patient now needed to have implants placed into the 4 extraction sites, to be restored with individual crowns.

The parents contacted Dr. A, asking for copies of their son’s records to be sent to Dr. C, explaining what the orthodontist had told them. The office sent a copy to Dr. C, the orthodontist, as requested. However, Dr. A was very upset by the situation, and confronted the practice owner, Dr. B, saying that he felt forced into treating a complex orthodontics case beyond his abilities. This led to Dr. A resigning his position with animus feelings on both sides.

Dr. C completed the orthodontics case while working in tandem with another dentist who placed and restored 4 implants at the sites where the extracted bicuspids had been.

Legal action

After consulting with and retaining a seasoned dental malpractice attorney, the mother, on behalf of her son, filed a dental malpractice action against Dr. A. As would be expected, the claims in the case were that Dr. A was negligent in treating the case with the 4 extractions, and that he engaged in treatment which was beyond his experience and training.

The damages claims asserted that, due to the patient’s youth and expected lifespan, both the implants and restorations would need to be replaced multiple times over the course of his life. The plaintiff sought monetary damages to pay for the initial implant and restorative treatment, as well as estimates for the future costs, and pain and suffering associated with having lost 4 permanent teeth and emotional distress in connection with the multiple treatments planned for the future.

Discovery

The records of Dr. C, an experienced orthodontist, were obtained and they included clear statements that the extractions of bicuspids were unnecessary because this was not an extraction case. The records of the general dentist who placed and restored the implants, Dr. B, included the costs for that work, plus an estimate of costs over the patient’s estimated lifetime for replacing the implants and restorations on them.

Deposition testimony of the patient and his parents was entirely consistent with the events at Dr. A’s office and with the records of Dr. B and Dr. C. The deposition testimony of Dr. A revealed his limited experience with orthodontics as of the time of treatment, especially with regard to never before handling an extraction case, and also delved into his discussions with the practice owner regarding his having felt pushed into doing treatment beyond his comfort level. Dr. A, a young and introverted man, felt very intimidated by the process and “dreaded” what a courtroom trial experience would be like.

Case resolution

Dr. A and his attorneys discussed the various ways the case could play out. Dr. A confided that he was losing sleep and professional confidence as the case moved along. His attorneys employed an expert, an orthodontist, who reviewed the records and deposition testimony. The expert believed that Dr. A’s treatment, but more importantly treatment planning, was appropriate, but that Dr. C’s approach would have been an acceptable alternative from the outset as well.

Considering the entire picture, Dr. A requested that attempts be made to try to settle the case before trial, and that took place in the lead-up to trial, leading to settlement.

Takeaways

With tuition amounts for dental school and non-residency specialty training programs as they are, the vast majority of recent graduates have a significant amount of loan debt, so their ability to obtain and maintain employment is more critical than ever. Therefore, pressures by employing dentists upon new dentists to perform procedures beyond their abilities can place these new dentists into positions of feeling that they must perform whatever treatment comes their way (even if beyond their professional abilities) in order to keep their jobs. This may put dentists into an internal battle, pitting ethical responsibilities to “do no harm” against financial obligations. It is a conflict without easy answers, but potentially severe repercussions.

That issue aside, this case raises a repeating theme in dentistry: the unabashed “throwing under the bus” of one dentist by another dentist — a concept referred to as “jousting”. Whether this is done through discussions with patients, in chart entries, by willingness to cooperate with plaintiffs’ attorneys, or all of these, dentists become engaged in this way far more frequently, at least anecdotally, than their colleagues in medicine. Why this happens is a matter of speculation, but the fact that it does leads to lawsuits, disciplinary complaints, and countless time and money spent in defense.

The often-referenced dental school quip of “put 10 dentists in the room and you’ll get 10 different opinions” has changed to “if our opinions differ, I’m right and you’re wrong”, which does not promote advancement of the profession, either among dentists alone or when involving patients. Perhaps elevating discourse in settings such as study clubs, continuing education classes, local dental society meetings, or publications would decrease this growing trend.

Disagreements between patients and dentists – especially about money – are common reasons that patients become plaintiffs. This case demonstrates one such example, namely the incorrect presumption by the parents that the treatment would be covered by insurance. While not always possible, obtaining insurance carrier responses to pre-authorization requests, before treatment is begun, will eliminate unknowns and presumptions in terms of dental costs, reducing the risk of financial disputes.

Related to this is the effect that a refusal on the part of a dentist to reduce fees, or even offer refunds under certain circumstances, can have. In this case, it was that rejected fee reduction request which started the unraveling of the dentist-patient relationship, which in turn led to seeking other care, and ultimately to litigation. It is not the purpose of this writing to advise dentists as to how to handle financial issues with patients, but it is a factor seen often by malpractice defense counsel.

Settlements of dental malpractice cases occur for various reasons. Sometimes, treatment is not able to be defended by experts, making settlement the preferred approach. But even when treatment is defensible, although questionable, pursuing the settlement option may be a matter of a dentist’s desire for resolution, so that practice and personal lives can normalize. Being involved in a lawsuit as a defendant is stressful and time-consuming, so prevention is the best medicine.

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The opinions expressed through this post are the opinions of the individual authors and may not reflect the opinions of MedPro Group or any of its individual employees. This document should not be construed as medical or legal advice. 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 may differ among companies. © 2021 MedPro Group Inc. All rights reserved.

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Malpractice Minute

Dental Case Study: Opioid Abuse Following Dental Treatment

Marc Leffler, DDS, Esq. – November 2022

Underlying facts

Dr. D was a well-experienced general dentist who practiced in a small rural town, in which he was the only dentist. As a result of the lack of any dental specialists located less than nearly an hour away, he was familiar with practicing the full scope of dentistry, including extractions and other oral surgery procedures, so he felt confident addressing post-operative concerns.

In the week following high school graduation, he saw an 18-year-old male patient whom he had treated for many years. The patient, “P”, had been admitted to enter trade school to become a carpenter in early September, so he wanted to have his lower right wisdom tooth, which had been bothering him episodically, treated before beginning school. Dr. D examined P clinically and radiographically, and found tooth #32 to be soft tissue impacted, in a vertical position with roots not fully formed, and with the surrounding gingiva slightly inflamed; due to the gingival condition, a prescription was given for Penicillin, to be taken for five days before returning for the extraction. The patient fully complied and returned as scheduled.

On the date of treatment, Dr. D made a conservative soft tissue incision and elevated the tooth out of its socket before placing a single suture. Prior to leaving the office, P said to the dentist, “I’m a real baby, so please give me something strong for the pain.” Against his better judgment, given the ease of extraction, Dr. D provided a prescription for 20 tablets of acetaminophen with codeine – 1-2 tablets every 4 hours, as needed for pain – and instructed the patient to also finish the remaining two days’ worth of Penicillin. When Dr. D called P the following morning, P said that he was literally writhing in pain, so Dr. D told him to use local measures and take the pain medications.

The patient appeared at the office on the third post-operative day, complaining of severe pain (10 on a scale of 10) and having used all of the pain medications prescribed. P asked for something even stronger, and although Dr. D could not clinically account for such severe pain based upon what he saw when examining the site, he wrote a prescription for 15 hydrocodone pills, with instructions to take 1 every 4 hours, only as needed. P continued to contact the dentist daily, with ongoing pain complaints, so at the suture removal visit a week following extraction, Dr. D gave P a prescription for 20 oxycodone tablets with the same frequency instructions, despite all clinical signs showing a well-healing extraction site and adjacent areas. Three days later, P called the office, saying that he was still in pain and that he had run out of pills, so he needed more; Dr. D knew that this meant that P was taking more pills than the prescription called for, but he gave a refill anyway.

The process continued for the next five weeks, with phone calls, office examinations, and additional prescriptions given. Dr. D received a call from P’s father, who was also his patient, saying that P had been admitted as an in-patient to a drug treatment facility, pursuant to court order, following his arrest for driving under the influence of narcotics. P remained in the facility for more than three months, so he was unable to begin school, and was re-admitted to the treatment facility shortly after getting into a physical altercation at home with his younger sister.

Legal steps taken

At the suggestion of the attorney consulted to review the events and advise P’s parents, P’s father, “F”, was appointed by the court as P’s Guardian, so as to be able to handle all of P’s matters, and make decisions on his behalf, for health, legal and all other issues. The first thing that F did was to seek and obtain a court mandate to keep P in the facility until the court directed otherwise.

F’s next step was to file a lawsuit on behalf of his son, against Dr. D, claiming negligent treatment in his prescribing of narcotics at the surgical visit, and then prescribing more potent opioids going forward, without clinical signs demonstrating their need, to the point that P became addicted to these drugs and unable to function without them.

The suit sought, as damages, monetary compensation for P’s pain and suffering, up until then and extending into the future, for lost potential earnings due to his not being able to enter trade school, and for the drug treatment facility costs borne by F. Upon his being served with papers, Dr. D contacted his malpractice carrier, and was provided counsel to defend the negligence/malpractice claims.

In the early days of the litigation, the defense counsel provided by the insurance carrier filed a motion to dismiss the claim for lost earnings on the ground that admission to any school does not guarantee successful completion of the course of study with graduation, thereby making F’s claim on that aspect speculative. The court agreed and dismissed just that component of the claim, leaving everything else intact.

With counsel unable to obtain expert support for the defense, the case was settled for a substantial sum. Dr. D was also sanctioned by his State Dental Board, suspended from practice for six months, required to take continuing education in the prescribing of narcotics, and fined.

Takeaways

The American opioid crisis continues to expand and worsen, with dentistry becoming an increasingly involved part. A 2018 retrospective large group study regarding 2015, performed at the Stanford University School of Medicine and published in JAMA Internal Medicine, reported alarming results relating to dentists and dentistry: (1) 5.8% of studied patients, age 16-25, who received their initial prescription of opioids from their dentist were diagnosed with opioid abuse during the 12 months following that initial prescription; (2) of the 13% of those studied in this age population who received opioid prescriptions, 30% of those received them from their dentist; and (3) the median number of narcotic pills received from their dentist by patients in the study who became addicted was 20. The study eliminated all people who had received any opioid prescriptions, or who had been diagnosed with opioid abuse, within the year prior to receiving opioids from a dentist, in order to try to focus in on the issue studied.

While it is not the purpose in evaluating this case study to suggest to dentists whether they should prescribe narcotics, non-steroidal anti-inflammatory drugs, over-the-counter medications, or nothing at all, the facts of this case point out the potential dangers associated with one of these types of medications — at the exclusion of potential dangers of other types of medications — in an effort to simply raise awareness in this realm.

The court’s dismissal here of the lost earnings claim, as speculative, conceptually speaks to any aspect of any claim. Unless there is a fact-based, reasonable basis for a plaintiff’s assertion for which s/he seeks compensation, it will not be permitted to proceed. Hunches, suppositions, and hypotheses which are used to try to prove any element of a lawsuit will be excluded and will serve as a bar against the viability of cases — or portions of cases — because factual proof and expert opinions held to a reasonable degree of dental certainty are the necessary components for a case’s success; defense counsel who are able to demonstrate to the court that any element of a plaintiff’s claim has no factual basis or has no science-backed foundation will effectively have the claim or portion of the claim dismissed “as a matter of law”.

Finally, we address the issue of the patient’s complaints, which were inconsistent with Dr. D’s clinical findings, as he continued prescribing narcotics. Such a scenario is not uncommon in circumstances involving patients who are becoming addicted and/or who may be passing the narcotics off to others. In any case, it should serve as a warning sign, just as any other aspect of dental practice when things simply do not make sense. These situations are of the type that might warrant the dentist to suggest that the patient obtains a second opinion — as geographically inconvenient as that could be — to make sure that the path being travelled is an appropriate one; it is also potentially protective in the event that, like here, a bad outcome develops and litigation ensues.

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Malpractice Minute

Dental Case Study: Death following extraction on Coumadinized patient

Marc Leffler, DDS, Esq. – November 2021

INITIAL EVENTS

An experienced general dentist (we’ll call him Dr. A) on the verge of retirement was greeted as he entered his office one morning by a process server who handed him a Summons and Complaint — it alleged that he caused the wrongful death of one of his patients, and had no further details. At first glance, the dentist had vague recall of the patient whose estate filed the suit, but he did not remember any problems with the patient’s treatment which was over a year earlier.

He immediately pulled the patient’s chart – all handwritten – to review it, in advance of getting in touch with his dental malpractice carrier. He was soon contacted by the assigned attorney representing him, and they agreed to meet the following day, as strict time limits existed regarding when a response on behalf of the dentist needed to be filed.

The dentist’s attorney contacted the attorney for the plaintiff to try to understand the underlying circumstances. The plaintiff’s attorney conveyed that this was a simple case: Dr. A had extracted the patient’s tooth, which led to a significant post-operative bleeding event on the day of extraction, which caused the need for emergency transport to a local hospital, where the patient (age 67) died. The plaintiff’s attorney suggested a quick settlement to save the family a stressful legal process. As would later be learned, those reported case facts were all true, but critical events – which would guide the entirety of the litigation and its resolution – were left out of the description.

TREATMENT BACKGROUND

Dr. A and his attorney went through the dental chart together to work through the course of treatment. The patient initially presented several years prior for a check-up. The dentist, who never had a medical history form as part of his chart, verbally discussed with his new patient any existing medical conditions: he was taking Coumadin due to a history of a “blood clot” (deep vein thrombosis), and metoprolol for hypertension. Dr. A simply noted “Coumadin and HBP” in the chart for medical history, and called the patient’s physician after determining that the patient needed a deep scaling; the physician said a subsequent dental appointment should be scheduled a week later rather than treating that day.

Unbeknownst to the dentist, the physician then told his patient to stop taking Coumadin for 4 days prior to that upcoming dental appointment and to obtain a blood test the day prior to it. The patient did exactly that, and his physician advised him to tell Dr. A that he may proceed with the planned procedure, and that the patient should re-start his Coumadin 2 days after the scaling. The patient reported to Dr. A only that his physician had told him that he may proceed, but he did not mention, nor was he asked about, Coumadin stoppage and testing. All went forward without complication.

The patient next appeared nearly a year later for what would be his final visit, complaining of a loose, annoying upper first molar. Radiograph and exam demonstrated a periodontally hopeless tooth, so the dentist suggested extraction and the patient agreed. Dr. A asked the patient how his health was, and he responded – according to Dr. A – that he was doing well, but his blood pressure medication had been changed to better control it. That was the entirety of the conversation, although the subsequent medical records clearly reveal that he continued to take Coumadin as of that time.

Dr. A routinely extracted tooth #14 and debrided the associated granulation tissue. He applied gauze pressure to the site and good hemostasis was achieved. The patient was discharged home with a packet of extra gauze, and instructions to place additional gauze on the site as needed. The patient’s son, who knew his father was going to the dentist that day, was unable to reach his father that evening, so he drove to his father’s house, to find him conscious but lying on the floor with blood seeping out of his mouth. An ambulance was called to transport the patient to a local hospital.

At the hospital, the patient was admitted and transfused. Laboratory values showed that the patient had an elevated prothrombin time, as would be expected in a Coumadinized patient. A hematologist managed the patient’s anti-coagulation and was able to medically stabilize him within a fairly short time. However, the laboratory studies also, unfortunately, revealed that the patient had an advanced, aggressive form of leukemia. After a work-up and a discussion of treatment options, the patient agreed to start a course of chemotherapy, but he stopped it several days later due to side effects that he found intolerable. Palliative therapy was provided at the hospital, but he soon passed away.

LEGAL STEPS TAKEN

Once defense counsel obtained all relevant medical records and had experts review them, it was clear that Dr. A was negligent in failing to take an adequate medical history at the extraction visit — so as to have ignored the important fact that the patient was taking Coumadin, thereby leading to the bleeding event which hospitalized him. But, it was equally clear that it was the entirely unrelated leukemia which caused the patient’s death.

Defense counsel contacted the plaintiff’s attorney, asking for discontinuance of the action because there was no good faith basis to maintain a wrongful death claim. Plaintiff’s counsel argued that it was the dentist’s negligence which put him in the hospital due to uncontrolled bleeding, but the dentist’s attorney reminded him that the only claim was for wrongful death, which was not caused by the dentist, and that the statute of limitations had expired as to any potential bleeding-related claim, thereby precluding its addition at that point. Ultimately, the plaintiff’s attorney relented, and discontinued the case.

However, the estate executor and plaintiff – the patient’s son – was upset that Dr. A was not held accountable for his negligent actions, so he filed a disciplinary complaint with the State. Disciplinary bodies, unlike courts in malpractice litigation, do not consider what result came of a dentist’s claimed improper actions, but only whether those actions constituted professional (i.e. appropriate) or unprofessional conduct — the latter of which is sanctionable. In this case, the disciplinary agency determined that Dr. A had acted improperly with regard to his record-keeping, specifically relating to his taking and recording of the patient’s medical history at the extraction visit. The dentist was given a stayed suspension and a fine, and required to take continuing education classes in the subjects of history taking and dental charting during his next license renewal cycle.

TAKEAWAYS

This case demonstrates the importance of immediate reporting to the malpractice carrier, so that counsel may be immediately assigned — not only for the purpose of filing timely response papers, but to allow counsel to evaluate the lawsuit’s pleadings to assess what the claims specifically are. Here, defense counsel was able to determine that the sole claim involved a wrongful causing of death, so that the review of the dentist’s chart and the subsequent medical records could be focused toward assessment and defense of the pending legal claims. Yes, this patient died after dental treatment – albeit well after that treatment, a fact not initially disclosed by plaintiff’s attorney – but it turned out to be unrelated to the dentist’s care. For a valid claim in dental malpractice, there must be negligent treatment which directly caused the injuries claimed.

A common theme explored in legal case studies is the importance of proper record-keeping, which simply cannot be emphasized enough. In this case, even if Dr. A did appropriately discuss medical history with his patient, he did not record having done so. Therefore, a reasonable inference may be drawn, including by a jury, that what was not recorded did not happen. While that issue did not play out in this malpractice case scenario, it was the focus of the discipline levied against the dentist.

Dentists would be well served to present their patients with printed medical history forms, which are then supplemented through a back-and-forth discussion, so nothing of relevance is omitted. Simply asking a patient, “Are you in good health?”, as is done with surprising frequency, leaves it to the patient to evaluate and report what conditions might be significant. Furthermore, a patient’s failure to disclose on a written form carries far more defense weight before a jury than conflicting stories about what was or was not said. Similarly, if physician consultations are requested, a written response from the physician, or minimally, a contemporaneously documented conversation between dentist and physician will eliminate issues associated with gaps in patient recall and/or which may confuse a patient.

While the purpose of this case study is not to dictate what actions dentists should or should not take in given situations, it is worth pointing out that it is far from uncommon that dentists are caught in situations which would appropriately differentiate between the initial stoppage of bleeding and the development of a stable clot. As a general principle, blood initially stops due to the actions of platelets, whereas stable fibrin clots are created after the body later completes a coagulation cascade; drugs such as aspirin and conditions such as thrombocytopenia may interfere with the formation of an initial platelet plug, while medications like Coumadin and conditions like hemophilia interfere with the clotting cascade to inhibit clot formation later. Here, the hemostasis achieved in Dr. A’s office was attributable to platelets (which are essentially unaffected by Coumadin), but the platelet plug which is normally replaced by a clot was not so replaced in this case, thereby accounting for the delay in the onset of bleeding.

From a risk management perspective, it is always a good idea to regularly review medical conditions and medications, especially as they arise in treatment circumstances; it is never a problem to consult literature or field experts.

Finally, this case demonstrates the value of open communication and a strong professional relationship between dentist and defense counsel familiar with the subject matters at hand.

Malpractice Minute

Dental Case Study: Who’s in Charge Here?

How a Dental Office’s Receptionist (and Answering Machine) Led to a Lawsuit

Marc Leffler, DDS, Esq. – February 2022

Background Facts

A woman in her mid-20s had been having discomfort for a number of months in her lower right first molar, which was especially pronounced when she was chewing. She recalled that the pain had begun shortly after she bit down on an unpopped popcorn kernel. Thinking that she had just irritated her gums, she increased her oral hygiene regimen but did not contact her dentist. The discomfort waxed and waned, so she figured that this would just take some time to get through.

In the week before finally seeing her dentist, she began to notice movement of a piece of tooth #30, combined with an uptick in the level of pain. She made an appointment to see her general dentist (Dr. A). Dr. A listened to the patient’s history and clinically examined the mouth, noting a clear mesio-distal fracture of the tooth. A periapical radiograph demonstrated a radiolucent lesion extending from the furcation to the apex, leading to the diagnosis of an infected, fractured tooth. Extraction was recommended and the patient agreed. Following a straightforward extraction with removal of a significant amount of granulation-like tissue, the patient was discharged home with usual post-extraction instructions, which included that the patient should contact the office with any questions or concerns.

On the second post-op day, the patient called the office and advised the receptionist who answered the phone that she woke up with red, warm facial swelling adjacent to the extraction site which was tender to the touch. The receptionist advised the patient that swelling after an extraction is nothing to be concerned about because it often happens and will resolve in a few days; Dr. A was not told of the conversation and the receptionist entered a chart note saying “spoke to patient, swollen”. The patient continued to feel worse, with increased pain and swelling, but she accepted that this was normal following an extraction, with this having been her first extraction ever.

Over the next weekend, she began to have difficulty swallowing, so she called Dr. A’s office, which the recording said was closed but offered no other information. She went to a local hospital, where she was admitted with a diagnosis of a submandibular space abscess. She received IV antibiotics and underwent intra- and extra-oral incision and drainage procedures, which ultimately led to her recovery and hospital discharge. As a result, she was left with a permanent facial scar which made the patient self-conscious about her appearance.

Legal Action

An attorney was retained who filed suit on behalf of the patient, now plaintiff. Dr. A was named as a defendant for having been negligent in failing to prescribe antibiotics and for failing to perform adequate and timely follow-up after the extraction. Additionally, Dr. A’s practice entity was named, for failing to have proper protocols in place, and as the employer of the receptionist, based upon her having negligently provided the plaintiff with dental advice which allowed a then-conservatively-treatable infection to become an infection warranting hospital care and leaving the plaintiff with permanent disfigurement.

The plaintiff sought monetary damages which were based upon her hospital course and the scar formation, along with the emotional distress that both caused her.

The Litigation Process

During the discovery phase, depositions were conducted, most significantly of Dr. A and the receptionist. The questioning of Dr. A focused on why he did not prescribe post-extraction antibiotics in the face of the radiographic and clinical findings; he responded, in essence, that there was no swelling or purulence so he did not see a need to do so, especially because he had removed the source of the problem. He was also asked why there had been no office policy in place which required non-dental staff members to confer with a dentist before giving patients advice about dental problems, but he was not able to provide any substantive response.

When the receptionist was deposed, it became clear that she had no medical or dental training, that she did not understand the significance of the symptoms described by the patient, and that she had based her advice to the patient on having worked in a dental office for many years, during which she had seen a wide array of patient issues, including post-extraction swelling.

Expert support was easily found by defense counsel on behalf of Dr. A’s basis for not prescribing antibiotics in this circumstance, citing a growing sentiment in dentistry against providing antibiotics unless signs of an active infection are present. However, that expert could not justify the lack of definitive office policy to prevent the receptionist’s actions, nor those actions themselves.

So, an agreement was reached by which a settlement was paid through the coverage afforded to the office entity, as compared with Dr. A’s individual coverage, because the negligence arose not from his own negligent treatment but from the negligence of the practice entity in failing to establish policy, and from the negligence of an employee of the entity. This resolution made for a non-reportable event to the data bank as against Dr. A.

Takeaways

There are diametrically opposing views by competent dental professionals regarding the use of antibiotics in situations like, and different from, this. As with virtually all clinical judgment decisions in dentistry, practitioners need to accept that others may have viewpoints counter to their own, but those differences do not mean that one approach is better or worse than another. What is most important, though, is that dentists must make considered determinations and be able to articulate sound reasons for what they do. This academic approach does not guarantee that a lawsuit will not be instituted, but it does mean that a solid expert-based defense can be provided.

When dental offices are closed, dentists should consider the ways that their patients may contact them in emergencies, whether through answering services, by giving patients their cell phone numbers, by forwarding them on to a covering dentist, or some other means. But simply having a recording, which advises callers that the office is closed and asking that they leave a message to be returned when the office opens, subjects the dentist to liability if a time-sensitive issue arises during off-hours.

In dental offices, it is only licensed professionals who are permitted to make decisions and provide advice regarding matters of patient health. Administrative staff members can and should handle administrative matters only, deferring all else to healthcare providers and making them aware of all health-related patient interactions. It is incumbent upon the dentists who oversee the work of their administrators to establish clear and unequivocal policies to assure that this protocol is never broken. This is not to say that written office rules are a necessity, but it needs to be made known to every member of the office staff that this is an immutable principle.

Finally, we take this opportunity to explain the value of maintaining coverage for the actions of all office staff members, in addition to the dentists. In this case, had there been no malpractice insurance policy covering the practice entity, there might not have been a policy provision which provided defense and/or indemnity protection for the actions of the receptionist, so the potential would have existed for an out-of-pocket payment to compensate the plaintiff for the receptionist’s improper actions. Similarly, had Dr. A not established a business entity, it would have been he, and not the entity, as the employer of the receptionist, so his personal malpractice policy would have come into play to defend and indemnify her actions, if that policy’s provisions allowed for that. While we do not advise how a practice should be set up from a business perspective, and while we do not speak here to the details of specific policies, we do want to make it clear that all of these issues are properly considered when professional liability policies are bound and renewed. MedPro’s professionals are available to discuss all of the situations raised in this case study.

Malpractice Minute Contest*

Question

When is it permissible for a non-dentist office staff member to provide advice to patients?

Submit your answer to the question using the form below! The winning answer will receive a $50 gift card.

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Malpractice Minute

Dental Case Study: Measure Twice, Cut Once

How Improper Documentation Led to Wrong-Side Surgery

Marc Leffler, DDS, Esq. – January 2022

Background facts

The insured general dentist had been seeing and treating a 29-year-old male patient since the patient was in his teens, by way of infrequent visits over time, with the patient generally appearing only for an occasional check-up presentation, having never had any restorations. On such a visit after a 3-year hiatus, with the patient asymptomatic, the dentist obtained a full mouth series of radiographs, on which he visualized a well-circumscribed, well-demarcated, radiolucent lesion that extended from the roots of teeth #17 and 18 – both of which looked to be partially “eaten away” – posteriorly and inferiorly toward the angle of the mandible, although there was no clinical expansion of the mandible. The dentist was unable to see the entire extent of the lesion, so he immediately referred the patient to a board-certified oral and maxillofacial surgeon for further evaluation and any required treatment; with the patient’s approval, the dentist emailed the patient’s entire set of records and radiographs to the oral surgeon, with all prior radiographs of the area appearing normal.

Following examination the same day, the oral surgeon took a panoramic radiograph that showed the lesion extending to the inferior border, and performed an incisional biopsy of what he stated on a biopsy requisition to be a “right posterior mandible lytic lesion”, which was reported several days later as an odontogenic keratocyst (“OKC”). That report incorrectly repeated the lesion’s location as the posterior right mandible, but the oral surgeon created no documentation of his having realized the error. When the patient returned to the oral surgeon the following day, he was advised that, due to the high rate of recurrence of OKCs, the extent of the lesion required that a complete resection of the mandible from the first bicuspid to the lower third of the ramus be performed, with immediate reconstruction using plating and a bone graft taken from the patient’s iliac crest. No chart entry stated the side of the potential surgery. The patient agreed and hospital surgery was scheduled for two weeks later. The oral surgeon updated the general dentist regarding the diagnosis and plan.

On the day of surgery, the oral surgeon was stuck in a traffic jam, causing him to be late at the hospital. While on route, he called the operating room waiting area and spoke to a nurse there, asking that his patient sign a consent form for right mandibular resection and reconstruction with hip graft and plating; the nurse agreed. The nurse discussed with the patient that he would be obtaining the patient’s signed consent for right side jaw surgery, and completed a proposed consent form listing those as the procedures. Upon reading the form, the patient corrected the nurse, advising him that the lesion was on the left side, so the nurse left the unsigned form for right side surgery in the chart and created a new one for left side surgery, which the patient signed and which was also placed in the chart.

Upon his arrival at the hospital, the surgeon briefly greeted the patient upon passing through the waiting area, and asked that the patient be brought into the operating room while he changed into scrubs. The operating room supervisor pointed out to the oral surgeon that his lateness had backed things up, so he should “move things along”. After quickly changing his clothes, he went to the OR suite, where he signaled to the anesthesiologist to put the patient to sleep while he scrubbed and gowned. The oral surgeon had brought with him only the pathology report and a print-out of the panoramic film, which did not have “L” or “R” markings. As he began to prep the right side for surgery, the nurse pointed out that the patient was definitive that the surgery was to be performed on the left side; the surgeon was adamant that the surgery was to be done on the right side and that the patient was incorrect, pointing to the pathology report describing a right OKC. The nurse did not question further. The oral surgeon performed a block resection from tooth #28 to the right ramus, sacrificing the right inferior alveolar nerve, and reconstructed the site with a bone plate and a graft from the patient’s iliac crest. The surgery proceeded uneventfully from a technical standpoint.

When the patient’s wife saw her husband that evening, she was shaken to see that the surgery had been performed on the wrong side. The patient became upset and distraught for the remainder of his time in the hospital, and refused to see the oral surgeon to be checked, asking instead that another surgeon on staff follow him until discharge. After seeing that other surgeon in the office following discharge, and after adequately recovering from surgery, the patient presented for the identical surgery on the left side, which sacrificed the left inferior alveolar nerve and which required using another reconstruction plate and a graft from the other hip. His facial deformities were quite apparent, and his functioning was grossly deficient, leading to a 40-pound weight loss in the year before implant placement and restorations could begin.

Legal status

The patient and his wife retained well-respected and experienced attorneys to file suit against the oral surgeon (for performing the incorrect surgery), the hospital (for failing to engage in a proper pre-surgical protocol), the oral pathologist (for reporting the OKC as being on the incorrect side), and the general dentist (for having made a referral to an “incompetent” oral surgeon).

Litigation events

Attorneys for the general dentist submitted a motion to the court, seeking dismissal, arguing that their client did everything that the standard of care required, namely making a timely referral to a board-certified specialist; the court agreed and dismissed the general dentist from the case. Similarly, attorneys for the oral pathologist made a corresponding motion, claiming that the standard of care for oral pathologists did not require confirmation of the location of the examined lesion, but instead allowing the pathologist to rely upon the practitioner who performed the biopsy for that information; the court concluded that this was a question of fact for a jury, and kept the pathologist in the case. The claims against the oral surgeon and the hospital were settled for substantial amounts, leading the patient’s attorneys to drop the sole remaining claim against the oral pathologist.

Takeaways

Although the general dentist was ultimately let out of the case, this situation makes clear that any practitioner involved with patient care may be made part of a lawsuit, and be forced to bear all that goes along with being a defendant in a malpractice action. Here, the dentist completely abided by the standard of care, and the court agreed, but an important lesson is to make referrals timely (as was done here) and wisely, considering experience, credentials and background of the practitioner to whom a referral is made.

It is not uncommon for dental professionals to run late and feel pressured to regain control of their daily schedules, whether to appease patients, staff members, or hospital administrators. But that can never serve as an excuse for not taking a “time out” prior to performing anything irreversible, to assure that the patient, treatment location, and procedure are all correct; if there is any doubt at all in this regard, steps must be taken to confirm complete accuracy, even if that means abandoning the patient’s care for that day altogether, and even if that means worsening already-existing schedule delays.

Because OKCs tend not to be expansile from the standpoint of splaying out the cortical plates and making the jaw appear to be “swollen”, the lesion provided no external clue as to which side contained it. It is frequently the case that bony and/or periapical lesions show no external signs of their presence, so practitioners act carefully by assessing all diagnostic factors before suggesting or rendering treatment.

The informed consent process here was relegated by the oral surgeon to a hospital nurse who was unfamiliar with the prior history of events. Best practice guidelines dictate that the practitioner about to perform the procedure personally obtain informed consent, rather than having some other person do it instead. Had the oral surgeon obtained informed consent, there would have been an appropriate forum for patient and doctor to fully come into agreement regarding the details of the surgery about to take place, including the correct location.

The oral surgeon in this case made a critical error in documentation to the oral pathologist, and that error repeated itself at every step following. (This is commonly seen in electronic medical records when incorrect documentation of history, diagnosis or procedure is repeated over and again, because practitioners “cut and paste” from earlier entries to save time.) If the panoramic here had been labelled “L” or “R”, of if the patient had any restorations to differentiate between the two sides, this serious problem might have been avoided, but neither of those situations existed, nor can these types of circumstances be counted on to derail an error in the making. In the end, the negligence in this case was an easily avoidable mistake, based not upon lack of ability or an incorrect choice between various options or a known risk which came to fruition, but upon failing to assure the correctness of a surgical procedure with permanent effects. Measure twice, cut once.

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Discuss methods and approaches that can be employed by dentists to prevent treatment of the “wrong” tooth or the “wrong” area of the mouth.

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Malpractice Minute

Dentist Relies on Texting to Follow Up With Patient After a Tooth Extraction, Leading to Poor Patient Outcome and Lawsuit

Mario Catalano, DDS, MAGD & Marc Leffler, DDS, Esq. – December 2021

Introduction

Technology has become ubiquitous in almost every aspect of modern living, including how we provide and receive healthcare. Today’s communication capabilities, including various forms of social media and electronic communication, have generally proven positive for healthcare providers; however, certain risks associated with technology must be recognized and avoided.

Texting offers a perfect example of a convenient, but risky technology. Although texting is acceptable in some circumstances, healthcare providers should take certain precautions. This interesting case from the Midwest illustrates how seemingly simple text communications can lead to missteps in care, a poor patient outcome, and liability exposure.

Case Discussion

Dr. M, a recent dental school graduate, joined a large dental group practice and began treating patients assigned to her by senior management. Like most people her age, Dr. M was comfortable with texting as a primary mode of communication, and she incorporated texting into her practice to communicate with her patients.

A 28-year-old male presented to the practice as a new patient, and he was assigned to Dr. M. He complained of pain in the area of the lower left jaw. Oral examination showed pericoronitis overlying a soft tissue impacted tooth. Dr. M prescribed an antibiotic and an antimicrobial mouth rinse, and she scheduled the patient to return in 2 weeks for an extraction.

The following day, Dr. M sent a text message to the patient asking how he was feeling, and he responded that he was improving. Once this texting relationship was established, a personal friendship quickly developed, including socializing outside of the practice.

The patient completed his antibiotic prescription as instructed. When he returned to the practice for the extraction, the tissues overlying the tooth were much less inflamed (although not completely normal), and the site was no longer painful.

Following a proper informed consent process, Dr. M began to extract the tooth. It took longer than she anticipated; the patient’s mouth had to be kept open with a bite block for nearly 50 minutes while Dr. M raised a full thickness flap and removed buccal bone with a bur to gain purchase point access. Postextraction, Dr. M asked the patient to continue with the rinse; however, she did not want to overload him with antibiotics (which had given him bowel distress), so she did not order a second round of antibiotics.

The evening of the surgery, Dr. M sent the patient a text — “How’s it going?” — that included an emoji of praying hands. The patient responded with a laugh emoji, followed a minute later by a sad face emoji and “lots of pain, hard to swallow, can’t open too wide.” Dr. M asked the patient to take a photo of his face and mouth and text it to her. Although the picture did not demonstrate excessive external swelling, it also did not show the intraoral extraction site or the submandibular region. The image was simply a typical frontal face selfie. Dr. M responded with a thumbs up emoji and “Don’t worry, just what I expected.”

The following morning, the patient texted “Wow, this is much worse than I figured. I think I have a fever. No work today for me!” and a thumbs down emoji. Dr. M responded only with a heart emoji and “Hang in there.” Dr. M’s text messages of that following evening and the next morning went unanswered.

The following day, Dr. M received a text from the patient stating “In hospital for surgery on my face to drain infection. Big scar. Ugh!!!” She texted back “OMG, so sorry to hear! You need some company!” and included a smiley face emoji. The patient never again spoke to Dr. M; he ignored her multiple texts and let calls from the office go into voicemail.

The next communication regarding the patient came from his attorney, who requested a complete copy of his dental record, including all text and email messages. Shortly thereafter, Dr. M was served with legal papers alleging malpractice by failing to properly treat postextraction complications — including a life-threatening infection — which resulted in permanent facial scarring. Through his attorney, the patient also filed a complaint with the state board of dentistry.

A defense expert was retained, but he had significant concerns about the technical dentistry; he also had concerns regarding the text communications. Ultimately, the case settled with a payment that compensated the patient for his medical costs, his pain and suffering, and the permanent scarring.

The state board of dentistry concluded that Dr. M had acted unprofessionally, both in relying on texting when the patient’s condition required direct contact, and in allowing her relationship with the patient to become unacceptably personal. She was fined and was required to take continuing education coursework on recordkeeping and HIPAA; this discipline was publicly posted on the board’s website.

Risk Management Considerations

Theodore Passineau, JD, HRM, RPLU, CPHRM, FASHRM

Several missteps — both clinical and nonclinical — can be identified in this case. In terms of clinical issues, the defense expert opined that it may have been wise to delay the extraction a little longer, given that the overlying tissues were less inflamed but still not normal. This was especially true in light of the fact that the patient had experienced considerable improvement and was no longer in discomfort.

The expert also felt that once the extraction had been performed, it would have been appropriate to “cover” the patient with another round of antibiotics. Finally, he felt that, at a minimum, Dr. M should have seen the patient in person once he complained about trismus and difficulty swallowing (clearly the texted selfie was inadequate).

Texting is a convenient method of communication, but it definitely has its limitations. While email can be encrypted fairly easily so that it affords an acceptable level of privacy, the same is not necessarily true with texting. (For more information, see MedPro’s article Ensuring HIPAA Compliance in Text Messaging).

HIPAA requires a significant level of security regarding the communication of protected health information; however, patients can waive this requirement if they wish to communicate by less secure means (such as nonencrypted email or texting). When this is the case, the less secure communication should occur only after the execution of an agreement between the patient and dentist. The agreement should explain the limited confidentiality of such communication and memorialize the patient’s agreement with this waiver of privacy. (See the Sample Agreement to Use a Nonsecure Communication Medium).

As noted above, when the patient’s attorney requested a complete copy of the patient’s dental record, copies of all texts and emails regarding the treatment also were requested. Dentists should expect that such communication will not be protected from the legal discovery process, and they will be required to produce emails, text messages, and other electronic communications related to patients’ care and treatment.

The final issue in this case was the development of a personal relationship between Dr. M and the patient. Generally, boards of medicine and dentistry view such relationships as a violation of professional ethics. Either the personal or the professional relationship should not continue in the presence of the other.

Summary Suggestions

The following suggestions may be beneficial to dentists who are treating or following up with patients remotely:

If the patient’s progress takes an unexpected turn at any point, request that the patient return to the office for an in-person assessment.
If a patient desires to use unencrypted means of communication, refrain from doing so until the patient has waived their privacy rights in writing.
At all times, make sure your communication with the patient is appropriate and professional. In the end, you do not know who may end up reading what you have written.
Refrain from maintaining close personal relationships with active patients. Such relationships are almost universally viewed as unethical.

While we all desire to make the provision of dental care as easy and convenient as possible, patient safety and quality of care should not be compromised in the process. When providing care or following up with patients remotely, be sensitive to situations that might indicate a developing problem. In-person care and face-to-face communication are essential when a situation has the potential to deteriorate. Finally, having a friendly rapport with patients is great, but dentists also should maintain professional boundaries at all times for the protection of everyone.

Case Study

When Personal Relationships Affect Professional Care

Marc Leffler, DDS, Esq. – October 2021

CASE STUDY BACKGROUND

A 59-year-old woman had been a patient of the same general dentist since she was in her teens, shortly after the dentist started his practice. The dentist had watched this patient grow up, begin her career, raise a family, and now plan her retirement in the next few years. He had attended her family’s functions over many years. When the dentist noticed that his friend had started smoking heavily in her mid-20s, it upset him but he never said anything to her, despite the habit continuing and worsening.

In the dental office, which used only handwritten paper records for clinical notes, the woman completed a health (medical and dental) history form some 40 years prior, and twice after that, approximately 15 and then 30 years after the first. On the two most recent forms, she acknowledged that she smoked cigarettes, but she did not state how much. The dentist did not question her in that regard, or, in fact, with regard to anything in her health history. In reality, she had a 45-pack-year history (1 pack a day for 45 years) by the time the dentist later retired.

Because the woman was the type of patient who tended to present only when something bothered her, there had been no formal treatment plans established for her. She had cleanings every few years, but because of her good home care, she had needed little in the way of interventional dental care: extraction of her two upper third molars in the early days, several fillings, and root canal therapy and a crown for a tooth which broke when a soccer ball hit her face.

About two years before the dentist’s retirement, the patient complained about soreness and roughness on the right lateral border of her tongue, which had bothered her “on and off”. The dentist looked in her mouth and found a red, slightly eroded area on the tongue, adjacent to what he viewed as a rough spot on a multi-surface amalgam restoration he had placed on tooth #31 in the past. The dentist smoothed the restoration and assured the patient that she would feel better after the tongue had some time to heal. There was only one further dental visit, which involved an occlusal adjustment of the aforementioned upper left crown, but the dentist did not ask about or check the tongue.

At the dentist’s retirement party, he suggested that the patient visit the young dentist who had purchased his practice, and she did so just a month later. At that visit, the new dentist took a full mouth series of radiographs, did a tooth-by-tooth assessment, and performed a cancer screening by viewing and palpating all of the tissues, intra- and extra-orally, about which the patient remarked that she had never had such an examination before. The examination revealed the presence of a large eroded and indurated lesion on the right lateral border of the tongue, as well as an enlarged lymph node in the right neck. She was immediately referred to an ENT, who conducted a work-up that diagnosed a squamous cell carcinoma of the tongue; staging protocols determined that she had stage III cancer. She underwent a partial glossectomy with a neck dissection, followed by a course of radiation therapy, but she felt disfigured, embarrassed by her appearance, and had difficulty eating and drinking.

LEGAL ACTION

Despite her many years of friendship with the dentist, the patient sought legal counsel, encouraged by family members. After obtaining the retired dentist’s records, and those of the new dentist and the cancer-treating doctors, the attorney consulted with various dentists and physicians who advised the attorney of their opinions that the malignant lesion was present and diagnosable for years prior to its ultimate diagnosis, when it could have been treated much more conservatively and when the patient’s life expectancy would have been able to be preserved for far longer.

The retired dentist was sued for failing to diagnose the patient’s squamous cell carcinoma, thereby causing her to undergo life altering treatments, negatively affecting her quality of life, and decreasing her life expectancy.

LITIGATION

During the deposition phase, the patient-plaintiff testified, quite sympathetically, about the changes to nearly every aspect of her life, and there was no doubt that a jury would see her as being disfigured. She also discussed how she viewed the dentist-defendant as a friend, almost a family member, and she had placed her trust in him. Questioning about her smoking history made clear how much and for how long she maintained that habit, and she acknowledged knowing that smoking placed her at greater risk for developing cancer and other health problems. She also accepted the fact that she had not been the type of patient to present to the dentist on a regular basis for check-ups and cleanings, but she countered by testifying that she saw and spoke to the dentist regularly outside of the office, and he never put pressure on her to see him more frequently.

The dentist served as a truthful and contrite witness, admitting that he never stressed to his patient-friend the importance of recall visits, and that he had not performed thorough cancer screenings, in large part because the patient generally only came when she had a problem.

Defense counsel obtained the opinions of dental experts who were unable to defend the dentist’s inactions, and oncology experts who concluded that the lesion had been present and identifiable for years before its discovery, when it could have been treated more locally and more conservatively, without impact upon the plaintiff’s longevity. With the dentist’s consent, the case was settled within policy limits. The dentist subsequently attended the wedding of the patient’s daughter.

TAKEAWAYS

It is not uncommon for dentists to have patients in their practices who only visit when they have a problem. That does not excuse the need for the dentist to perform complete radiographic and clinical examinations, to include cancer screenings, and to have their patients update their health histories, at intervals consistent with their own protocols, whenever those patients do present. If patients refuse complete examinations, despite being advised that such refusals may be detrimental to their health, then the dentist should document the interactions well each time they occur. Dentists may wish to consider dismissing repeatedly noncompliant patients from their practices, but that should be done so as not to abandon patients in the midst of treatment, and allowing them adequate time to find a new dentist, with emergency availability provided during that interim period.

It is also not uncommon for longstanding dental patients to become friends of their dentists. While such relationships may better both of their lives socially, they may also provide for a feeling of being uncomfortable when the dentist believes that a serious discussion is needed if the patient does not follow proper home care, does not regularly present for dental visits, does not abide by the dentist’s advice, or does not pay bills. Under the law, it is entirely irrelevant if a patient is a friend, a family member, or was not even charged for care, when considering whether malpractice occurred. It is also a common misconception that patients who are personally close with a dentist will never sue. So, from a risk management perspective, all patients, regardless of status, ought to be treated dentally in the same way, in accordance with the appropriate standards of care. As this case demonstrates, personal and professional relationships can be kept separate.

Dentists may be sued in malpractice both for commission of improper care, i.e. by performing treatment in a negligent fashion, and for omission of proper care, i.e. by failing to diagnose a condition which should have been diagnosed. Either situation has the potential to lead to significant damages claims, with the latter pointing out the need for thoroughness in and frequency of examinations.

At the final visit with the defendant, when the patient presented for an occlusal adjustment subsequent to the dentist previously noting the red eroded area of the tongue and then smoothing out the restoration on tooth #31, looking again at the tongue so as to compare it with what he previously noted — and documenting that — would have shined additional light onto the situation. Whether or not that would have changed the patient’s ultimate treatment or result, it would have demonstrated the dentist’s diligence to a potential jury. It could have also possibly led to an earlier referral to an appropriate specialist, thereby allowing his attorney to comment that the defendant dentist understood the importance of his finding, and that the dentist would have done more detailed examinations, and taken proper steps, if only the patient had presented more regularly and for routine care.

Finally, it is all too frequent that patients become aware of previously undiagnosed conditions, or improprieties in their prior dental care, only when they leave the care of one dentist in favor of another. While the “new” dentist has a clear obligation to inform the patient of what is found upon examination, the way that such information is imparted may mean the difference between the prior dentist being named in a lawsuit or not. Professional communication is a vital risk management tool.

Malpractice Minute

Dentist Misjudges Bone Height During Implant Placement, Resulting in Damage to the Inferior Alveolar Nerve; Malpractice Lawsuit Follows

Mario Catalano, DDS, MAGD & Marc Leffler, DDS, Esq. – July 2021

Introduction

Every new dentist faces the same dilemma: there is no replacement for experience. As new dentists settle into practice, hopefully they understand their own limitations, as well as the limitations of the techniques and equipment they use in practice. Adopting a conservative approach, especially in one’s early days of practice, may be beneficial.

However, the practice of dentistry is dynamic. The seasoned as well as the new practitioner should not just settle into a certain way of doing things, while ignoring the inevitable changes in the standard of care. As new knowledge and techniques become available, the dentist must consider whether and when it is appropriate to incorporate them into one’s practice. However, that balance between currency and credibility is not always easy to maintain.

Case Discussion
Dr. C maintained a general dental practice that focused heavily on dental implants (both placement and restoration) and the use of lasers to treat various oral conditions. Dr. C had recently hired Dr. K, a recent dental school graduate, as an associate. Because of the practice’s emphasis, Dr. K was sent to several weekend courses on these techniques and Dr. C mentored him as he began practice.

A 51-year-old woman presented to the practice as a new patient, wishing to explore her options regarding her missing tooth number 19. The case was assigned to Dr. K, who began by taking a set of full mouth X-rays and conducting a thorough oral examination. Dr. K’s reading of the X-rays indicated there was 9 mm of bone superior to the inferior alveolar canal (IAC). Choosing to be cautious, Dr. K suggested to the patient the options of either an 8 mm implant or a traditional 3-unit bridge. Following a thorough discussion of the recognized risks and expected benefits of each option, the patient opted for the implant. Because this was a single, apparently uncomplicated implant case, Dr. C decided Dr. K should handle it.

On the day of surgery, the patient signed an appropriate informed consent form that reiterated the risks and benefits previously discussed, including the possibility of inferior alveolar nerve (IAN) paresthesia. Dr. K also assured the patient that the 1 mm margin allowed for between the implant depth and the IAN canal should provide a “safety zone” to account for any discrepancies between the X-ray and the actual bony structure.

After the induction of local anesthesia, Dr. K began the series of sequential osteotomies for implant placement. During this process, Dr. K suddenly felt a decrease in resistance to the drilling, which he attributed to poor bone quality. He proceeded with the preparation and completed the implant placement.

He then reviewed the case with Dr. C, including the lack of resistance he thought he felt. Dr. C suggested a postsurgical X-ray, which indicated that the implant had invaded the IAN canal. This finding explained the lack of resistance.

The patient was informed of what had transpired, and the implant was immediately removed and bone graft material was placed at the osteotomy site. Dr. K explained that the IAN would likely be numb for a period of time. He also recommended to commence treatment of the nerve with low level laser therapy (LLLT) to stimulate healing and restore function (LLLT is not Food and Drug Administration [FDA]-approved for this application). The patient consented, and LLLT treatment was commenced that day.

Dr. K followed the patient closely over the next 18 months, providing approximately 30 LLLT treatments and documenting his subjective assessment of slight improvement after each treatment. However, Dr. K never conducted any nerve mapping or other objective measurement of nerve function.

Eventually, the patient became dissatisfied with her progress and sought a second opinion from an oral and maxillofacial surgeon (OMS). The surgeon indicated that the therapeutic window had passed and little could be done to improve her current condition. She also noted that X-rays showed bone fragments close to the IAN.

The patient sued both dentists charging that they had prepared for the original procedure improperly (by failing to take a cone-beam computed tomography [CBCT]), performed the procedure improperly (by using an implant too long), and failed to appropriately refer her to an OMS or neurologist in a timely manner, thereby preventing her benefiting from prompt remedial treatment.

Several potential defense experts reviewed the case for the doctors’ insurance carrier; however, none of them could support the care. Additionally, the expert reviews of this case questioned the appropriateness of the immediate bone grafting after the implant was removed. The case against both doctors was settled by a payment to the patient.

Risk Management Considerations

Theodore Passineau, JD, HRM, RPLU, CPHRM, FASHRM

This case provides an opportunity to discuss the dynamic nature of the practice of dentistry from two perspectives: the evolution of currently performed procedures and the introduction of new therapeutic modalities.

The limitations of radiographs have long been recognized. As CBCT has become more available and less expensive, its use as part of the implant placement process has become more widely accepted, especially when placement will be near the IAN or maxillary sinus. When the use of CBCT becomes the standard of care is difficult to say, but the dentist needs to consider it in all appropriate cases.

The use of any unapproved therapy also requires careful consideration. While the off-label use of medications or the use of not-yet-FDA-approved implants is (in some cases) within the standard of care in medicine, when it is done, the patient must be very thoroughly counseled and informed that the therapy is not approved by FDA. This advisement is accomplished through the informed consent process.

Whatever treatment is rendered, the dentist (however long he or she has been practicing) must be fully competent to perform the procedure and manage any reasonably anticipated complications. A savvy dentist knows and accepts her or his limitations. If the case starts to “go off the rail,” an early referral to someone with appropriate expertise is likely to inure to the patient’s benefit, and hopefully will minimize the referring dentist’s potential professional liability exposure. Along the way, all dentists participating in a patient’s care should take occasional “timeouts” to assess whether the case is progressing as it should.

Informed consent to treatment was not an issue in this case; however, it is important to understand what informed consent is and isn’t. Informed consent is when the patient is educated about the recognized risks, expected benefits, and reasonable alternatives to the proposed treatment so that he or she can make an informed decision about whether to proceed with treatment. In consenting, patients are assuming the risks that have been explained to them; however, they are never consenting to care below the standard of care.

Summary Suggestions
The following suggestions may be useful when providing higher risk or unconventional dental treatment:

Clinical competency is a must. If the dentist is not completely familiar with the condition, its treatment, and the possible complications, he or she should promptly refer the case to a provider with more specific expertise to address treatment needs or complications.
Clinical competency is not a static state. Dentists must devote sufficient time and attention to completing continuing dental education (CDE) and other information that will keep them current with the state of practice.
If an experimental or unapproved treatment is proposed, the dentist must clearly explain the experimental or unproven nature of the procedure to the patient as part of the informed consent process.

Conclusion
Because of ongoing research and development, the accuracy, efficiency, and efficacy of dentistry has never been at a higher level. However, it remains an inexact science. New potential or actual risks may emerge with every new product or technique. So, dentists should continually increase their knowledge, skill, and attention to detail in response to new developments.

Malpractice Minute

Dental Case Study: Measure Twice, Cut Once

How Improper Documentation Led to Wrong-Side Surgery

Marc Leffler, DDS, Esq. – January 2022

Background facts

Legal status

Litigation events

Takeaways

Malpractice Minute Contest*

Question

Discuss methods and approaches that can be employed by dentists to prevent treatment of the “wrong” tooth or the “wrong” area of the mouth.

Submit your answer to the question using the form below! The winning answer will receive a $50 gift card.

First name *

Last name *

Email *

Dental School *

Dental School Graduation Date *

Answer *

What other topics would you be interested in?

Want more MedPro?

Yes, please sign me up for more case studies like this!

*NO PURCHASE NECESSARY. The “Malpractice Minute Contest” is subject in all respects to the complete Official Rules available by clicking here.

Malpractice Minute

Treatment With Removable Orthodontic Appliances Produces Poor Outcome and Results in Dental Malpractice Lawsuit

Mario Catalano, DDS, MAGD – October 2019

Background
Treatment with clear, removable orthodontic appliances is an option that is becoming accepted in mainstream dentistry. This treatment is popular with patients from both an appearance and convenience standpoint. However, it is not without risks as illustrated by the following case.

Case Discussion
Dr. M was a residency-trained general dentist who had been in solo practice for about two years. One of the services she offered to her patients was orthodontic treatment using clear, removable appliances (trays).

The patient was a 57-year-old female who came to Dr. M wishing to have four lower anterior teeth (23, 24, 25, and 26) straightened. She also wanted the dentist to replace tooth 19, which was missing, with an implant. Dr. M determined that the patient was a suitable candidate, so she suggested using removable orthodontic appliances. The patient was delighted with this prospect and readily agreed.

Dr. M took a set of full mouth X-rays on the patient. After completing the necessary paperwork, the patient’s records were sent to the aligner company for analysis and recommendations. The aligner company opined that the patient was an appropriate candidate for its product and indicated that the straightening of the anterior teeth should be easy to accomplish. The company also suggested to close the space between teeth 18 and 20, thereby eliminating the necessity for an implant for tooth 19. The patient accepted this proposal and treatment was commenced.

After treatment with tray number 3 was completed, Dr. M noticed that the tooth 19 space was not closing (because the trays had not been properly constructed), and she reordered the remaining trays. Once the replacement trays were received, treatment continued as planned for the remainder of the first year. At that time, Dr. M noticed significant mobility in all six teeth being treated. After being advised of this development, the patient became concerned and sought a second opinion from an orthodontist.

The orthodontist concluded that he could not improve the situation much. He placed fixed bands on teeth 22, 23, 24, 25, 26, and 27 and referred the patient to an oral and maxillofacial surgeon (OMS) for evaluation of teeth 18 and 20. The OMS concluded that teeth 18 and 20 were not salvageable and recommended their removal and replacement with bone grafts and implants. This procedure was performed, and a fixed bridge was then placed from teeth 18 to 20. Ultimately, teeth 22, 23, 24, 25, 26, and 27 were restored with a bonded splint, with a guarded long-term prognosis.

The patient brought a dental malpractice lawsuit against Dr. M, alleging lack of adequate informed consent, a poorly designed treatment plan, and failure to perform the alignment therapy correctly, resulting in the loss of two teeth and the potential loss of an additional four. At the doctor’s request, the case was settled in the midrange, with defense costs in the low range.

Risk Management Considerations

Theodore Passineau, JD, HRM, RPLU, CPHRM, FASHRM

All dentists understand the inherent risk present when an attempt is made to move or realign permanent teeth, but this risk is not commonly appreciated by the general public. That is where the concept of informed consent comes into play: educating the patient regarding the indications, contraindications, expected benefits, and recognized risks of proposed dental treatment.

Unfortunately, some dentists view informed consent as a necessary step that is done just to prevent litigation. When treatment is elective and not time-sensitive (as in this case), thorough patient education by means of a face-to-face conversation — and memorialized by a signed consent form — should occur.

When this process does occur, not only is it clear that the patient has understood and accepted the risks associated with the procedure, but also patient compliance with the treatment plan tends to improve (including alerting the dentist to any unexpected developments). Additionally, the patient’s expectations of both the treatment process and the final results tend to be more realistic. This informed consent conversation also tends to enhance the overall doctor-patient relationship, which is a key factor in avoiding dental malpractice litigation. However, if Dr. M did, in fact, practice below the standard of care, a thorough informed consent process would not have protected her from liability; patients are never expected to consent to negligent care.

Additionally, whenever the dentist expands his or her scope of practice (generally or in a particular case), it is essential that he or she possess the necessary knowledge and skill to practice within the standard of care immediately upon commencing the new therapy. Dentists are most vulnerable to a failed case early in the “learning curve” (such as when first learning to place dental implants).

Further, in this case, it was unclear whether the dentist failed to monitor the patient’s dentition at appropriate intervals during the treatment process or that she simply did not recognize the negative direction her treatment was taking. However, it is clear that earlier intervention would have been beneficial.

It is also unlikely that the manufacturer of the orthodontic appliances could face any potential liability in this kind of case. Under a legal principle known as the Learned Intermediary Doctrine, when a “learned intermediary” (in this case, the doctor) chooses to use a particular technique or product, he or she becomes solely responsible for the results of that decision. Unless a defect was in the product that the doctor did not and could not have reasonably been aware of, the manufacturer is largely insulated from liability. However, if the manufacturer had sold the product directly to the patient (as recently seen advertised), the Learned Intermediary Doctrine would not apply and the manufacturer would face liability. In this case, although the manufacturer advised Dr. M that the patient’s condition could be corrected via its appliances, this advice was given to the doctor, not to the patient.

Conclusion
Dentistry is constantly evolving with new techniques, products, and materials making their way into daily practice. Although it is incumbent on dentists to keep abreast of new developments, it is also necessary to have a thorough understanding of these new products and techniques before incorporating them into daily practice.

Question
What steps should the dentist take to ensure that he or she is fully competent to perform new techniques or use new products before including them in treating his or her patients?

This document should not be construed as medical or legal advice. 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.