Case Study

Patients Are Entitled to Choose Their Treatment … Within Reason

Marc Leffler, DDS, Esq.

Background facts

As a young child growing up in the 1950s and 1960s, Mrs. H’s physician often prescribed Tetracycline for her frequent respiratory tract infections, either unaware of or unconcerned about the potential for causing intrinsic dental staining. She was always upset in the years that followed, that despite her vigilant oral hygiene, and despite having used any number of tooth whitening systems, including one applied by her prior dentist, she could never rid her teeth of the yellowish staining that existed since the teeth erupted. After having moved across the country when she and her husband retired, she went to a new dentist with the sole complaint of her dissatisfaction with the esthetics of her upper anterior teeth.

Dr. S, a young dentist in the process of trying to build a cosmetic and restorative dentistry practice, clinically and radiographically examined his new patient. She was periodontally stable and had no apparent decay. Upon hearing Mrs. H’s complaint and her desire to improve the way she looked when she smiled – which she has always been hesitant to do – he suggested placing veneers on teeth #5-12, explaining that, with little tooth preparation, veneers would provide a great improvement. The patient rejected that idea because the alignment of those teeth was not the ideal rounded shape that she saw on some of her friends. As an alternative, Dr. S said that he could “grind away” more of the teeth than is necessary for veneers, and make her crowns, which would correct both the color and alignment.

Mrs. H saw these approaches as just others to add onto her list of failed treatments, so she was opposed to both of them. Instead, she wanted to learn more about implants that she had heard so much about in the media. The dentist explained that implants were used to replace missing teeth, so they could not provide a solution for her because she had all of her teeth. The new patient became insistent that she wanted to have her 8 upper front teeth – which she “hated” – extracted, and replaced by implants and “ideally shaped” crowns on them. Against his better judgment, but wanting to have a new patient in the community praise the great cosmetic work he did to each person she would meet, he agreed to go forward as she requested.

With local anesthesia and nitrous oxide/oxygen delivered through a nasal mask, Dr. S. slowly extracted each of the teeth, often surprised by the difficulty in doing so, owing to the fact that, without periodontal disease, the teeth were firmly attached to alveolar bone; when the two lateral incisors were removed, a small amount of buccal bone remained attached to those teeth. After some modest hard and soft tissue trimming, 6 implants were placed with the aid of a pre-made stent for spacing purposes. The surgery seemed to go uneventfully, and a laboratory-fabricated removable denture was adjusted and inserted.

By the sixth week post-placement, 2 of the implants, around which the soft tissue had been persistently inflamed, despite antibiotics and oral antimicrobial rinses, were noted to be loose and were removed. An additional implant failed less than 3 weeks later, and a fourth, as well, as the uncovering phase approached, leaving only 2 integrated fixtures. Dr. S advised Mrs. H that he would need to allow time for the lost implant sites to heal, and then reinsert new ones, which would then need time to integrate, or else she would have to remain with a removable appliance. She became incensed, requested and obtained copies of her records and radiographs, and went to another dentist, who openly and severely criticized Dr. S of having committed malpractice and gross misconduct for extracting “perfectly good teeth”. This subsequent-treating dentist advised Mrs. H that she had very limited options due to the significant bone loss in the entire anterior region, told her that a removable appliance was the best approach, and suggested that she contact a lawyer, which she did.

Legal status

Mrs. H’s attorney filed suit on her behalf against Dr. S, claiming negligence and reckless behavior on his part for needlessly and inappropriately extracting healthy teeth, rendering her a “dental cripple”. Additionally, Mrs. H filed a disciplinary complaint with the State’s dental board. Counsel for Dr. S denied any negligence or recklessness by their client, and worked with Dr. S to respond to the board.

Litigation events

Addressing the board action first, after several hearings, Dr. S was sanctioned for the very actions complained of. As a result, his licensed was partially suspended for a period of 2 years, permitting him to practice during this time only if he was under the direct supervision of another dentist; he was fined; and he was required to take continuing education courses prescribed by the board. In its written ruling, the board denounced Dr. S. for having violated his oath against malfeasance (“above all else, do no harm”), and specifically pointed out that he had been led astray of sound dental principles by permitting the patient to dictate her care, despite his knowing that it was not in her best interests.

In the State in which these events occurred, board findings against dentists, which involve the same dental care as is the basis for a malpractice suit, are permitted to be admitted as trial evidence. On the advice of his counsel, Dr. S agreed to have the malpractice action settled for an amount which, in addition to compensating for pain and suffering, would pay for a treatment plan established by an oral surgeon and a prosthodontist which involved placing additional implants and restoring them.

Takeaways

It is an often-mistaken concept that patients have an absolute right to dictate what care they will receive. In reality, patients may absolutely determine what treatment they refuse to have, but they do not have the right to dictate to practitioners what care those practitioners must provide. Dental practitioners are legally and ethically obligated to “do no harm”, so they must not perform any treatment which they know, or which a reasonably prudent dentist would know, is improper or otherwise not in the patient’s best interests. This does not mean that patients are not permitted to choose between various alternatives or options, so long as those options are dentally viable; in fact, informed consent laws require that patients be advised of the viable options available to them, in addition to foreseeable risks and the procedure benefits, prior to their agreeing to a specific treatment option. Once the viable options are presented to patients, the final choice as to which approach to take belongs exclusively to them. In this way, dentistry – at least at the treatment plan decision-making stage – becomes effectively a “team sport”, in which all involved are meaningful participants.

So, despite how fervent a patient might be about having a certain dental procedure performed – whether, as here, the extraction of healthy teeth to allow for implant placement, or the fabrication of a fixed bridge on abutments which are periodontally compromised, or the removal of certain types of serviceable restorations for reasons not accepted as scientifically valid – it lies with the dentist to perform only those treatments which that dentist knows to be beneficial to the patient’s dental and overall health. Patients most certainly should be part of the treatment decision-making process, but that involvement must not include demanding that which is unjustifiable.

Patients might sometimes present to their dentists with unrealistic expectations as to what treatments are available to them, or unrealistic expectations as to potential results, so it is up to dentists to properly educate their patients regarding what is possible, or even probable, and what is not. Not only does this uphold ethical obligations, but patients who are educated in advance are far less likely to take actions against their dentists, because they have practical and genuine anticipations.

As distasteful as dentists find malpractice suits, board actions can pose much more potent consequences, including potential license suspensions, continuing education mandates, or fines, which may be levied by dental boards. Any inquiry from a state board is most prudently handled by an attorney, and not the dentist him/herself.

Finally, actions like those of the subsequent dentist here are being seen with increasing frequency and are leading many patients, who might otherwise not do so, to seek out attorneys to sue their dentists. All, or at least most, dentists are faced with situations in their practices when they see work done by prior dentists which they view as faulty or ill-conceived. As a first matter, seeing an end result does not give the new dentist enough information in terms of the circumstances with which the prior dentist was faced, so as to be able to make an informed assessment about what did or did not happen at some point in the past, and what care by a dentist or home care by a patient took place in the interim. But even when dentists appropriately disagree with an earlier treatment plan, or view the product that they see as inadequate, patients can be advised in a professional manner which does not encourage them find a lawyer or to institute litigation on their own. It is not uncommon for a criticizer in one situation to become the criticized in another.

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. © 2022 MedPro Group Inc. All rights reserved.

Case Study

Electronic Records Templates are a Force to be Reckoned With

Marc Leffler, DDS, Esq.

Background Facts

A healthy 24-year-old woman, a third grade teacher, presented to her primary dental office in which a general dentist, Dr. G, practiced alone; an oral surgeon, Dr. S, who was fairly new to practice, traveled to the offices of general dentists, including the distant office of Dr. G, to perform oral surgery on their patients. Dr. G had seen this patient who had been occasionally bothered by her fully impacted tooth #32. After a discussion about the situation, Ms. V agreed to have the tooth extracted, so the office appointed her to see Dr. S on his next planned visit day.

When Dr. S next came to Dr. G’s office, on a snowy March 12^th, he was met with a very full schedule of surgical patients, the last of whom would be Ms. V. A panoramic radiograph available to him showed a deeply impacted, horizontal lower right third molar, in close radiographic proximity to the inferior alveolar canal, which the patient said continued to cause her discomfort and which she desired to have extracted. Dr. S and his patient had a discussion about the procedure, but because Dr. G’s office did not make use of, or even have, “informed consent” forms, there was no document that memorialized any aspect of that discussion.

With local anesthesia, Dr. S sectioned the tooth, removed it, irrigated the site, and sutured it; nothing in the surgical procedure was eventful or unusual, and the inferior alveolar nerve was not visualized. As soon as the patient was discharged, Dr. S rushed out of the office, anxious to start his long drive home before the snow-covered roads got too icy. In his haste, he forgot to complete the electronic record entry for the procedure. A week later, on March 19, the patient returned for suture removal, and complained to Dr. G that the right side of her lip and chin were numb, and that she had soreness at the extraction site. Dr. G placed dry socket paste, told the patient that what she was experiencing was normal but it might take some time to resolve, and asked her to return in 6 weeks to place a restoration on a lower left molar. Dr. G did not make a chart entry that day, for reasons never made clear, although she did notify Dr. S about the paresthesia.

Dr. S made his next trip to Dr. G’s office on April 8. Wanting to follow up regarding Ms. V’s paresthesia, he opened the electronic chart, only to realize that he had not made an entry for the surgery, and that Dr. G did not do so either for the post-op visit. So, he immediately made an entry, making use of the “extraction template” that was part of the electronic system. On May 2, Dr. G performed a restoration and made a timely entry, and the following day, she entered a note for the March 19^th visit. The electronic record for these visits was as follows (with italics added here for emphasis):

4/8: “late entry for 3/12; discussed risks of pain, discomfort, IAN inj. with patient and guardian if applicable; lido/septo l.a.; flap reflected, 702 fissure to section M/D/P roots; Rx Amox 500 or Clinda 150, Ibuprofen, Norco 5/325”
5/2: 19 MOD
5/3: “late entry for 3/19: pt presents for dry socket 32; irrigate, flush, DS paste; experiencing some numbness; told pt this is normal, can take up to a year to resolve”

The patient never returned to the office, but instead, at approximately 1 year following the last visit above, she presented to a hospital-based oral surgery clinic, where she was told that it was not clear whether the injury would have been amenable to repair under any circumstances, but that she had waited too long for them to attempt it. Her paresthesia never resolved.

Legal Action

Ms. V retained an attorney, who reviewed the records and consulted with an expert, prior to initiating suit against Dr. S – for negligently performing the extraction and failing to obtain the patient’s informed consent – and Dr. G – for failing to timely refer the patient for evaluation of her nerve injury.

Discovery

Most relevant here were the depositions of the plaintiff, Ms. V, and Dr. S. At her deposition, Ms. V testified that Dr. S seemed to be rushed when he spoke with her prior to surgery, and that his discussion with her about the extraction was brief, advising her only that all surgery, including this, has risks, but they are rare and unlikely to occur and unlikely to affect her after a few weeks, at most. She was not advised of any treatment options.

Dr. S testified about the snowstorm and his busy schedule for the day at issue. He also acknowledged that he had not recorded his treatment on that same day, and that he had seen and treated well over 100 patients between March 12 (the date of surgery) and April 8 (the date of chart entry), such that he did not fully recall all of the surgery details by the time he made the entry.

Perhaps most important was his testimony that he simply placed a general full bony impaction template into the record, without even noting which tooth he had removed, and without any modification, including no removal of extraneous, inaccurate aspects of the template, giving his reason for doing so as his lack of familiarity with the relatively new electronic system and his infrequent use of it.

He admitted, during questioning about the specifics of his template entry, that: (1) his recall of the events might not have been “100% accurate” by the time he made the entry; (2) he likely had not provided any treatment options; (3) there are in the area of “12 or so” realistic risks of the procedure, but his entry only listed 3, including only those which came to fruition; (4) there was no discussion with a guardian, as none was needed for an intelligent woman of age majority; (5) he had used Lidocaine only, and no Septocaine, as the local anesthetic (because he never uses Septocaine); (6) he could not possibly have sectioned the palatal root, because lower molars have no palatal roots, by definition; (7) he likely gave an antibiotic prescription, and his choice would have been either Amoxicillin or Clindamycin, but he did not recall which; and (8) he did not prescribe Norco, or any other narcotic analgesic, but most likely suggested an NSAID such as Ibuprofen.

Case Resolution

An expert retained on behalf of Dr. S believed that the decision to extract tooth #32 was appropriate, and although the chart entry lacked surgical details, the deposition testimony by Dr. S as to his usual and customary approach revealed no stated deficiencies. Therefore, the expert would have been able to defend the surgery itself, but she voiced real concerns about the “sloppy look” that the late chart entry and lack of template modifications set out. Regarding the issue of informed consent, the expert concluded that – between the lack of any signed document, the patient’s definitive testimony about the limited pre-surgical information provided to her and the absence of any treatment options, Dr. S’s inability to provide detail of such discussion other than being limited to the 3 risks in the entry, and his acknowledgement of not likely having provided any treatment options – this claim in the case was not defensible.

Regarding Dr. G, both her expert and the plaintiff’s expert concurred that, although she did not provide a timely referral for evaluation of the nerve injury, it was speculative as to whether this type of injury could have been repaired even if addressed soon after the procedure. This led to the plaintiff discontinuing her claim against Dr. G.

With the indefensible claim for lack of informed consent, and Dr. S and his counsel being very concerned about how a jury would view the problematic templated electronic chart entry, Dr. S agreed to making attempts to settle the case, and it was settled before trial.

Takeaways

This case provides a number of risk management concepts, with the primary focus on electronic records and their templates. There is no question that electronic records can be very helpful in terms of note consistency, and using templates for specific procedures can save surgeons valuable time. But ease of use can float into complacency, especially when practitioners are pressed for time and running behind schedule. When selections within templates are not adequately made to reflect the true treatment (or consultation) events, then the resulting entry can detract sufficiently enough from the surgeon’s professional credibility that an otherwise readily defensible case can become indefensible, as this case demonstrates. The enumerated deposition responses above paint a picture of a “sloppy look”, in the words of the expert, allowing savvy plaintiffs’ attorneys to be able to encourage jurors to believe that sloppy in note entries translates to sloppy in surgery.

The actions of Dr. G, and her being let out of the case, demonstrate that, in order for a plaintiff to be successful in a malpractice action, all elements of a cause of action – negligence directly causing injury – must be met by that plaintiff. Here, although it may be argued that Dr. G gave improper advice to the patient regarding how long the healing process might take (the negligence element), it could not be definitively said that the delay in which she participated led to any aspect of the injury, i.e., permanence, because the ability to repair, even with early referral, was an unknown. Speculation cannot serve as support for any element of any claim.

These events show the importance of the informed consent process. Even if there had been no chart issues and even if there were no aspects of surgical planning or performance to be criticized, the plaintiff could still have been successful in obtaining a judgment to compensate her for her injuries, based solely on the failure of Dr. S to have made her a fully informed patient, able to make a decision as to whether to proceed with surgery, or not.

Finally, we briefly address the effects of hastened activities regarding any aspect of care, and for whatever reason. Whether a surgeon may feel rushed because a procedure is taking longer than expected with a full waiting room of patients, or a late-arriving patient throws off the schedule, or a personal matter arises which requires the doctor to leave the office as soon as possible, or a snowstorm creates hazardous roads, stepping out of the rushed mindset and slowing things down will nearly always decrease the potential for surgical, administrative, and communication errors.

Case Study

Down the Hatch!

Swallowed/Aspirated Objects in Dentistry

Marc Leffler, DDS, Esq., & Mario Catalano, DDS, MAGD

Background facts

Dr. H, a pediatric dentist in a rural area, saw a 13-year-old male patient whom she had treated since he was about 5. Over the years, his treatments consisted solely of periodic prophylaxis and a few sealants. At this visit, the patient’s mother recounted that he had been struck on the upper lip with a baseball several months prior. Although the lip had swelled at the time, no dental symptoms had occurred until a few days before the office visit, when tooth 9 — the upper left central incisor — began to hurt.

Dr. H updated the patient’s medical history, gathered more details about the baseball incident, took a periapical radiograph of the upper anterior region, and performed vitality testing of the upper incisors. The symptoms and examination results indicated that tooth 9 needed endodontic treatment. After Dr. H explained the endodontic process and what to expect following it (in terms of restoration and tooth longevity), the patient’s mother agreed to have Dr. H proceed.

Upon receiving the local anesthesia infiltration, the patient squirmed in the chair, but generally tolerated it. However, when Dr. H approached him with a rubber dam and began to place it, the patient became scared and pushed the dentist away. Dr. H explained to him why she needed to place the dam, and then she tried again. The patient continued to push it away and yell that he did not want it in his mouth. Dr. H tried a third time (while administering N2O/O2 by nasal hood), but was still unsuccessful. She then decided to go forward without a dam in place.

The patient became agitated as Dr. H gained access into the pulp, but she was able to complete that step. Once the filing began, the patient responded by moving around, flailing, and yelling. Dr. H lost control of the #10 file in her hand and dropped it into the patient’s mouth, where it traveled toward the oropharynx.

Dr. H firmly told the patient that he needed to stay still as she tried to grab the file with college pliers, but he continued his previous behavior and began coughing incessantly. Dr. H eventually lost sight of the file. She was able to calm the patient by telling him “I’m not doing it anymore,” which allowed her to place suction as far posteriorly as she could. Although the patient’s coughing subsided, Dr. H was unable to locate the file.

The closest hospital was about 40 minutes away, so Dr. H told the patient’s mother to take him to a free-standing medical office down the street. Dr. H did not call ahead to alert the medical office of the patient’s condition or imminent arrival. After a 30-minute wait at the medical office, a chest X-ray was taken that showed a foreign object in the right main bronchus. The physician was unsure about what he saw, so he sent the patient to the hospital and simultaneously emailed a digital version of the film to its emergency department (ED). When the patient arrived at the ED, another chest X-ray was taken that revealed the aspirated dental file in the right lung.

Once an appropriate amount of time had passed to ensure that the patient’s stomach was empty, the on-call pulmonologist performed a bronchoscopy under general anesthesia and retrieved the file. The patient remained in the hospital until the following evening and then regularly followed up with the pulmonologist. He reported shortness of breath, frequent coughing, and chest discomfort for months. The pulmonologist stated that no treatment was indicated and noted that the patient could potentially experience the symptoms indefinitely.

Legal Action

The patient’s family retained an attorney to seek compensation for what the patient had endured and for his ongoing symptoms, which did not seem to be improving. Before filing suit, the plaintiff’s attorney contacted Dr. H’s malpractice insurance carrier to discuss the situation, claiming that Dr. H was negligent in performing endodontics without a rubber dam (especially on a scared child), and in failing to take any other measures to protect against a swallowing or aspiration event.

The plaintiff’s attorney would not agree to any settlement until it could be determined whether the patient’s ongoing symptoms would be long-term or permanent. (The extended statute of limitations for minors in many, if not all, states allows more than ample time to take a “wait-and-see” approach regarding any longstanding effects.) Approximately 1.5 years after the incident, the patient was able to resume normal activities, and he voiced no further issues.

At that point, the plaintiff’s attorney filed a lawsuit. The malpractice insurance carrier obtained Dr. H’s consent to settle the case (an allowance that her policy contained). The plaintiff’s attorney then worked with the carrier’s claims representative to reach a settlement agreement that satisfied the patient’s parents as well as the court, the latter of which is frequently required in cases involving injured minors to ensure that settlement funds are appropriately set aside for the child and that the magnitude of the injuries is fully known to the extent reasonably possible.

Risk Management Considerations

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

The first issue to consider in relation to this case is informed consent, the requirements of which vary among states. Generally, prior to invasive procedures, dentists are obligated to advise a patient (or a minor patient’s parent or legal guardian) of the foreseeable risks of the proposed procedure, its expected benefits, and any reasonable alternatives. This discussion should take place before obtaining consent or refusal to move forward with treatment.

An important consideration in this case is whether aspiration of a dental endodontic file is a risk that is foreseeable — a determination that dentists must decide for themselves. Traditionally, foreseeable risks are viewed as those that are known to occur in the absence of negligence; however, as with many legal concepts, the definition is not precise. Because of this, dentists often are left to determine whether such a pre-procedure warning is appropriate.

From a risk management perspective, providing more information to patients to help them make better decisions is generally recommended. However, obtaining informed consent does not absolve dentists from liability if they fail to comply with the standard of care, and patients cannot “sign away” their rights to have non-negligent treatment.

Another issue in this case was the rubber dam. Many dentists do not use rubber dams during root canal therapy or related procedures due to personal choice, impossibility in placement, or patient intolerance. However, experience shows that plaintiffs can easily find expert witnesses who will testify that the failure to use a rubber dam for endodontics is a departure from the standard of care. Defendant dentists, on the other hand, might face an uphill battle finding credible experts to testify in support of them, especially when no other protective measures were in place to counter the risks of swallowing/aspirating a foreign object or preventing potential infections.

In this case, Dr. H decided to proceed with treatment without a rubber dam in place, rather than deferring treatment until she could take a safer approach. Alternative approaches include pre-procedure sedatives, performing the treatment in a hospital under general anesthesia, performing the treatment in the office with a practitioner who is skilled in sedating or generally anesthetizing children, or employing some other means of mitigating the child’s intolerance.

Dr. H also did not use any other precautions, such as setting up a gauze barrier to catch a foreign object forward of the oropharynx, tying a piece of dental floss through the hole in the file’s handle to assist in easy retrieval should the file slip, or using one of the other protective devices available on the market. As such, Dr. H compromised her initial plan without considering her other options.

A final and important point relates to the personal relationship between dentists and patients — a critical part of dental practice. At a time when the patient and his mother were understandably upset, and the patient was in some degree of distress, they were left to travel to the local medical office and then to the hospital on their own. Had Dr. H or a member of her staff accompanied them, it likely would have had some calming effect, and it certainly would have communicated Dr. H’s concern for her patient. Whether that would have changed the family’s decision to retain an attorney and to proceed as they did cannot be known. However, dentists often can assuage situations when they demonstrate that they care about their patients by regularly communicating with them during treatment periods, especially when problems or complications arise.

Summary Suggestions

The following suggestions may be helpful to dentists seeking to minimize their patients’ risk of a swallowing or aspiration event:

Recognize that a variety of foreign objects can be swallowed or aspirated, including implant materials; tooth fragments; orthodontic wires, brackets/bands; crowns; repair materials; and pieces or the entirety of a bur. The potential for foreign object swallowing or aspiration affects nearly all types of dental practitioners.
Evaluate all patients to determine their appropriateness for treatment at the time of the procedure. Patients who are sedated and/or under general anesthesia lose their protective pharyngeal reflexes, so particular care should be taken to prevent objects from falling to the back of the mouth.
Follow simple safety precautions to prevent the swallowing or aspiration of a bur. First, never reuse single-use burs. These burs are not designed to withstand the temperatures associated with sterilization, which makes them more prone to breakage when they are reused. Second, be sure that the bur is fully seated in the handpiece prior to use and that the handpiece’s gripping mechanism is functioning properly. Run the bur briefly prior to entering the oral cavity, and away from the patient’s face, to make sure that it is not loose.
Use retrieval methods to assist in preventing the swallowing or aspiration of a foreign object. If the instrument you are using has a retrieval hole (e.g., on endodontic files and reamers) or a slot (e.g., on implant hand instruments), be sure to place a piece of dental floss through or around it to assist in retrieving the object if it slips. Crowns are smooth and can easily slip out of your fingers, and teeth are known to break during extraction or slip from forceps. Tying floss around crowns and teeth is not viable, so other protective means — such as oropharyngeal gauze barriers or rubber dams (when appropriate) — are critical.
Employ alternatives to rubber dams when patients will not tolerate them or other circumstances prevent their use. Understandably, rubber dams make many patients feel claustrophobic, which could result in irrational behavior or a medical emergency.
Keep MedPro’s swallowed/aspirated foreign object protocol close at hand in case swallowing or aspiration does occur (see appendix). A prompt and appropriate response to this event can be beneficial in minimizing the degree of injury.

Conclusion

Not all adverse events that occur in the practice of dentistry can be avoided. Yet, events that occur with regularity should be anticipated, and reasonable steps should be taken to prevent them. Similarly, when adverse events do occur, prompt and appropriate responses frequently minimize suboptimal outcomes. As with so many aspects of dental risk management, preparation is the key to the best possible result.

Appendix. Assessment Matrix for Swallowed/Aspirated Foreign Object

Case Study

Not Every Patient Can Have Every Procedure

Background facts

A 57-year-old, post-menopausal woman presented to her regular restorative dentist, Dr. E, whom she had seen for a number of years, and in whom she had trust and confidence. She had lost her 4 upper incisors in a bicycle accident some 5-7 years prior, but was no longer cosmetically satisfied with the removable partial denture she had been wearing, despite the fact that she had been functioning quite well with it. She had seen television commercials touting the benefits of dental implants to allow for the replacement of missing teeth, and she was struck by the degree to which cosmetics could be improved in situations much like hers.

On her updated health history form, she noted that her only medical issues were related to laboratory outcomes, which demonstrated a moderately elevated serum calcium level, and a bone density study about 3 years prior to the current visit which revealed widespread osteopenia with focal areas of osteoporosis. As a result, she had been on a regular oral regimen of a bisphosphonate, prescribed by her primary care physician, since shortly after the diagnoses of osteopenia and osteoporosis were made.

After briefly discussing the patient’s medical history with her, Dr. E stated that he was not concerned with her bone condition or the medical treatment for it, especially because the last monthly oral dose had been taken 20 days earlier, and because she had suffered no associated problems during her 2 ½ years of taking the medication. A surgical appointment was scheduled for 3 days later, when the patient was able to schedule some time off from work.

On the day of surgery, Ms. P was handed a consent form by a dental assistant, and asked to read it, after which she was to sign it. The patient had some questions regarding the written risks, but the assistant assured her that this form was “just for the lawyers”, so she shouldn’t be concerned; the assistant added that Dr. E has been placing implants for a long time and is excellent at what he does, so all of his patients do well and there was nothing to worry about. The patient signed the form before the doctor came into the room, and nothing was said about it or its contents after he arrived. A nitrous oxide/oxygen mixture was given through a nasal mask, followed by local anesthesia, and 4 carefully chosen implants were surgically placed in the sites that teeth 7, 8, 9, and 10 had occupied, without the need for any bone grafting, all under copious irrigation and attention to textbook-like detail, after which the site was sutured. The patient’s partial denture was relieved of pressure points on the underlying gingiva, and reinserted. Ms. P was discharged home, with prescriptions for antibiotics (for one week) and analgesics, and appointed to return in a week for suture removal.

At that post-op visit, the patient complained of continuous, low-grade discomfort and tenderness. Dr. E examined the area when he removed the sutures, and he noticed small shards of bone being ejected from the entire upper anterior region, which he removed, followed by irrigation. Ms. P was discharged and advised to return in 4 months for preparation for implant uncovering, or sooner if any problems developed or she had any concerns. Two weeks later, she returned with continuing symptoms, and an increasing number of bony spicules were noted and removed, so the site was again irrigated, with a refill prescription given for antibiotics. This was followed by weekly visits, each time with increasing pain, which was repeatedly treated with the same process of irrigating and removal of small bone fragments. Approximately 3 months after the implant placement, Dr. E took a radiograph for the first time post-operatively, a panoramic film, and noted areas of what looked to be bony sequestra and poorly defined radiolucencies. Unsure of what he was seeing, Dr. E referred the patient to an oral surgeon, who, that same day, took several specimens of bone from under a small flap, and sent them for pathology; a diagnosis of “osteomyelitis vs. osteonecrosis” was returned.

Given the patient’s bisphosphonate history, the oral surgeon concluded that Ms. P had developed bisphosphonate-related osteonecrosis of the jaw (BRONJ), and planned a hospital admission for coordination with an infectious diseases specialist. After admission and concurrence by the medical specialist as to the likely BRONJ diagnosis, IV antibiotics were begun, and the oral surgeon then brought the patient to the operating room for open exploration and thorough debridement of the anterior maxilla. The amount of necrotic bone that had developed over the relatively short time was substantial, so the surgeon aggressively excised the necrotic bone, which extended to close to the nasal floor; all 4 implants were removed with the bone, as were both maxillary canine teeth. Ultimately, with no prosthodontic device in place for the next 4+ months, and with repeated regimens of antibiotics and antimicrobial rinses, the site healed, but with bony and soft tissue voids which were clearly apparent. Ms. P was eventually restored with a new removable partial denture which had a far worse cosmetic appearance and less functional ability, to include a hissing sound during speech, than her initial presenting appliance.

Legal action

After Ms. P’s retained attorney obtained the dental and hospital records, and had an expert review them, a lawsuit was instituted against Dr. E, alleging negligence and lack of informed consent. The major claims of negligence were improper patient selection, the failure to consider and protect against the well-known effects of bisphosphonates, the failure to coordinate care with the patient’s primary care physician, and the failure to timely diagnose and act on the bony destructive process post-operatively, thereby leading to the loss of bone and teeth to the point that she could no longer adequately function and that a prominent area of her facial appearance was cosmetically unacceptable.

Case Defense Steps

Defense counsel obtained an expert who was a board-certified oral surgeon with much experience placing implants. The expert was critical of the approach taken by Dr. E, most particularly regarding selecting a patient for implants who, because of using a bisphosphonate, was at a high risk for BRONJ. Furthermore, while prescribing antibiotics was considered appropriate, delaying the first taking of a radiograph for 3 months, especially in the face of ongoing problems, and not referring to an oral surgeon early in the complication phase, were viewed by the expert as outside of the standard of care. Finally, the expert was critical of the fact that, prior to agreeing to perform this elective surgical procedure on this patient, Dr. E should have recognized the significance of the patient’s medication regimen and involved the patient’s primary care physician in the decision-making process by obtaining medical clearance.

In the lead-up to trial, counsel for the plaintiff and defendant engaged in a Court-ordered settlement conference, which led to an understanding regarding an appropriate settlement value, but subject to the agreement of Dr. E, whose dental malpractice policy allowed him the option of refusing a settlement in favor of going to trial. Only upon Dr. E’s agreement to settle were those terms accepted, thereby ending the case.

Takeaways

The concept of obtaining medical clearance from a patient’s physician is a judgment determination, but it ought to be considered when a patient presents with medical conditions, medication regimens, and/or social habits which the practitioner is either concerned about or unfamiliar with. If a dentist does consult with a physician, best practices dictate that the substance of the interaction be documented, preferably with a writing directly from the physician consultant, but minimally with a detailed, contemporaneous chart entry; in the event of subsequent litigation based upon a medical issue, such documentation will provide defense counsel with strong evidence of the dentist having taken appropriate steps. Patient selection criteria, based upon every patient parameter available, are paramount to a successful result and a satisfied patient. Here, the patient’s bisphosphonate regimen was an important, even critical, factor in that selection process; not every patient can have every procedure.

It is not the purpose of this case study to advise as to what treatments are appropriate, as that is left to the practitioner’s judgment, but certain concepts – such as developing differential diagnoses when problems arise, ongoing determinations as to when to use radiographs, and when to make referrals – are best considered thoroughly with all patient interactions.

When patients present for any cosmetic concern, dentists should recognize that cosmetics are subjective in nature, and might be viewed differently by patients and dentists, so there is an increased risk of patient dissatisfaction – or claimed dissatisfaction – when procedures are performed primarily for esthetic reasons, as compared with those performed purely for functional improvement.

When obtaining a patient’s informed consent, dentists should understand that this is not satisfied simply by receiving a signed piece of paper, regardless of how much detail that form contains; consent is a give-and-take process between doctor and patient, in language and terms understood by the patient, in which the patient is advised of the benefits of, alternatives to, and the foreseeable risks associated with the planned procedure and its viable alternatives. The process must be specific to the procedure and to the individual patient, taking into account that patient’s medical, surgical, and social history; when practitioners discuss risks not included on pre-printed forms, those should be documented in the chart. Obtaining informed consent is generally not delegable to a person other than the practitioner about to perform the procedure, although in some limited situations, a similarly trained practitioner who knows the case-specific facts may stand in for that purpose, but a dental assistant or other non-professional staff member is incapable of playing that role, as this case clearly demonstrates.

In a similar vein, it is all too common for non-professional office staff to render opinions, give advice, or otherwise comment upon treatment-related issues. Practitioners must realize that they are liable for any and all consequences which may arise from the actions/inactions of their staff members, so staff training is necessary to make the members aware that they must not provide any such information or recommendations to patients, other than for entirely administrative purposes. This concepts holds, as well, for telephone interactions between the patient and office staff, when the practitioner is rarely present and when patients frequently ask questions about their care or condition; such inquiries must be directed to the practitioner. As this case demonstrates, a dentist’s specifically stated grant of approval to a non-dentist to handle the obtaining of informed consent, or any other procedure not directly allowable under state law, does not make it permissible, and further, sets the dentist up for liability for actions by staff.

Finally, it is impossible to know what will ultimately lead to case resolutions, but when insurance carriers retain defense counsel who are experienced and aware of all available approaches, dentists and other professionals are best protected. And when practitioners’ liability policies allow them to decide whether or not to settle, they control their own destinies.

Case Study

Background facts

‘Dr. J’ was a young general dentist in the process of building her practice, in part through the use of a number of social media platforms. As a result of that exposure, with followers continually growing, she saw a constant uptick in the amount of new patients and an expanded array of dental procedures performed – especially in cosmetic dentistry – among already-existing patients. In addition to information provided on her own practice website, Dr. J created detailed social media professional profiles for herself which provide certifications she obtained. Among the many credentials listed was advanced training in root canals.

‘Mr. T’ was a healthy, 27-year-old male patient of the practice, taking no medications and having no known allergies, whose social media presence can best be described as large, to the extent that he might even reasonably be viewed as an influencer of sorts. Despite his full-time work in a retail clothing business, he posted multiple times each day, with photos of nearly everything he did and descriptive captions. On his way to visit Dr. J on March 3^rd, he posted a “selfie” of his swollen face, which he would later learn was due to a periapical infection on tooth #28, a tooth which had a deep restoration and which had been “acting up” for more than a month.

Dr. J performed endodontic therapy on that premolar after explaining to Mr. T that she was as much of an expert in doing root canals as specialists in that field. The procedure was completed that day, and Mr. T was given a prescription for Erythromycin. Over the next few days, Mr. T’s social media photos documented an increase in facial swelling, with it spreading into the submandibular region, but Dr. J responded to daily calls by telling her patient to continue taking the antibiotics and apply local measures such as hot compresses and saline rinses.

When he began to have difficulty swallowing over the weekend, he went to a hospital emergency room because Dr. J’s office was closed and he received no response to two voicemail messages. The hospital’s on-call oral surgeon examined Mr. T and determined that his condition was an impending Ludwig’s Angina. The surgeon performed intra- and extra-oral drainage of the abscess with an extraction of tooth #28, in the operating room under general anesthesia. The purulence obtained was sent for culture and sensitivity testing, but the oral surgeon empirically changed the antibiotic regimen to Clindamycin and Amoxicillin in advance of obtaining test results. Mr. T was discharged from care by the oral surgeon some 3 weeks later, leaving a facial scar but no other apparent residual effects.

Legal action

Approximately 9 months later, Dr. J was served with papers that alerted her to a suit which was initiated by attorneys for Mr. T. Dr. J’s malpractice carrier assigned counsel, who responded as required, starting the process of document exchange, including the demands for the providing of details of the injuries claimed by Mr. T. In addition to his scar, the hospitalization and associated costs, and the need for a dental implant with restoration, Mr. T also claimed in a sworn written statement that he was so uncomfortable following surgery and so embarrassed by his scar that he had been unable to enjoy life as he normally had before these events. His social life of going to clubs and restaurants with friends had stopped since the defendant’s treatment, he could not travel, and he would no longer play soccer (as he had done every weekend) due to a new fear of the ball striking the right side of his face. Regarding his claims of negligence, Mr. T asserted that Dr. J had prescribed an ineffective antibiotic, which allowed the infection to expand, in the face of her failing to clean and then obturate the apical 2mm of tooth #28, and that she failed to appropriately respond to his post-treatment complaints.

Discovery

One of the first actions Dr. J’s attorneys took was to explore Mr. T’s social media activity, which is an extremely common approach among defense attorneys, as well as looking at their own client’s social media presence. Although Dr. J had told her attorneys that Mr. T continued his social media activity following his dental treatment in essentially the same way as he had beforehand, they found that all postings beginning with March 3^rd had been deleted. So, they sought, and received, authority from the Court to obtain copies of all of Mr. T’s deleted posts directly from the platform operators. All deleted posts by the plaintiff were provided to defense counsel who, pursuant to Court directive, gave over copies to the plaintiff’s attorneys.

What Dr. J’s attorneys learned – from both the plaintiff’s deleted posts and their own client’s website and social media presence – would be critical to the way that this case would turn out. Addressing first the defendant dentist’s website and her other activity, they knew immediately, based upon having thoroughly gone through the academic and training background of Dr. J, that she had grossly overstated her endodontic credentials as having had “advanced training in root canals”: she had no formal post-doctoral training at all, other than fulfilling her annual state-mandated continuing education requirements, with only a 3-day online course entitled “An Overview of Complicated Endodontics”. This overstatement, at best, or misrepresentation, at worst, could be the source of aggressive and potentially fruitful cross-examination by plaintiff’s counsel in front of a jury, which would hurt her professional credibility and severely hinder her chances of that jury finding in her favor on the issue of liability.

But what was discovered upon reviewing the plaintiff’s deleted posts was of far greater significance, as what they showed contradicted literally each of his sworn-to claims that his lifestyle had been irrevocably changed for the worse. A series of posts, just a month before his sworn statement was signed, showed him on the beach in Jamaica, drinking and dancing to a steel band with friends of his who “liked” those posts. He posted photos of himself in 5 separate soccer league games beginning in June. A video from a Halloween party showed him in costume and talking about what a “great time” he was having. And his review of a restaurant he had visited just a week later said “best dinner in a very long time”.

Dr. J’s counsel were not aware whether the plaintiff’s attorneys had examined the defendant’s website and other public posts, but assumed that to be the case and that counsel would exploit the overstatements at a time advantageous to the plaintiff. They also did not know if the plaintiff’s attorneys had looked at the damaging posts of their own client.

Case resolution

In weighing the pros and cons of confronting Mr. T’s attorneys with what they had discovered – as compared with simply waiting for depositions or trial – they ultimately opted to try to end the case as quickly and efficiently as possible by explaining to plaintiff’s counsel what they had found, and how that would serve as a devastating blow to the plaintiff if a jury were shown, side by side, his sworn statement of claimed injuries with the directly contradictory social media posts. After plaintiff’s counsel subsequently looked into the issue as suggested by defense counsel, he acknowledged that he had not been aware of any of that, and that once they explored their concerns with the plaintiff, which he fully understood, they discontinued the case against Dr. J.

Takeaways

The three dental issues of concern in this case – the quality of the endodontic filing and obturation, the appropriateness of the antibiotic prescribed by Dr. J, and the level of follow-up provided when the patient called with complaints – turned out not to have any bearing, whatsoever, on the outcome of the case, not because they were unimportant but because they happen to have been overridden in significance by issues in this dental malpractice case which had nothing to do with dentistry. This is not to say or suggest that, under different circumstances, these same aspects of the dental care could have been the only things to have mattered and to have been “battled out” between experts for the plaintiff and defendant, and resolved by a jury.

The overriding issues presented in this case study are the impacts that website content and social media posts may have in the context of a dental practice. While there can be no doubt that professionally done websites, which delve into the dentist’s background and training and the scope of practice, can serve to build practices, they can also pose problems and create weaknesses if litigation arises, especially if the dentist’s stated credentials are exaggerated or inaccurate, or if, for example, the dental procedure at issue in a given situation is not one which is among the dentist’s stated regularly performed treatments. So, dentists are wise to be prudent and accurate in their website content. Similarly, social media posts by dentists, even in their personal capacities, may be allowed by courts to be shown to juries, if any relationship can be drawn to their professionalism. From a risk management perspective, dentists should routinely review their own websites and social media presence, and should perform searches of themselves and their practices to locate inaccurate material that their patients – and their attorneys – might view; there may well be expert techniques to address inaccurate and/or harmful content.

In this case, it was the patient’s personal activities, as shown on his social media postings, which directly contradicted sworn claims he had made to the court in a document accompanying litigation papers. It is primarily for this reason – the corroboration or negation of personal injury claims – that diligent defense attorneys will undertake a thorough review of all plaintiffs’ online presence, and will seek the intervention of the court, if needed, to recapture even those items which are damaging to a plaintiff’s case but which were deleted. Whether regarding plaintiffs or defendants, posts on the internet are nearly always able to be retrieved, regardless of the time that has passed since they were taken down.

As this case study shows, it could be internet content, rather than dentistry, which determines the outcome of a dental malpractice case.

Case Study

Who’s in Charge Here?

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

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.

Case Study

Opioid Abuse Following Dental Treatment

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.

Case Study

Anterior Endodontic Treatment Leading to Paresthesia

Marc Leffler, DDS, Esq.

Background facts

A 37-year-old man presented to his general dentist in excruciating pain associated with a lower left canine tooth, #22; the tooth had undergone trauma during a hockey game years ago, but had been asymptomatic since days after that event. Even though the tooth looked radiographically to require endodontic treatment (RCT) which would be straightforward, the dentist chose to refer the patient to an endodontist due to the patient’s severe symptoms. Within an hour, the patient presented to a local endodontist with a printout of the periapical in hand, but the endodontist took a Panorex as well before doing her examination; it was clear that RCT was needed.

Consent for the procedure was obtained, but with the apex of #22 lying well anterior to the mental foramen, the endodontist did not view or express paresthesia as a real risk. Local infiltration with one carpule of Septocaine (Articaine HCl 4% with epinephrine) was delivered but the symptoms barely abated, so a mandibular block using an additional carpule of the same anesthetic was given, fully anesthetizing the area. The RCT uneventfully went forward to completion, with the final film showing the single canal densely filled to the radiographic apex with gutta percha. The chart entries documented the anesthesia and endodontic procedures in appropriate detail.

At a post-treatment visit two weeks later, the patient asked why “the Novocaine never wore off.” The endodontist suspected that this was a temporary condition, so she re-appointed the patient for two months afterward, at which time the condition was found not to have changed. The endodontist referred the patient to an oral surgeon, who examined the patient and explained to him that he believed the persistent numbness was related to the block injection, so it was not amenable to surgical correction. Normal feeling never returned.

Legal status

The patient retained an attorney to pursue an action against the endodontist. Records were obtained and a dental malpractice action was filed, claiming negligence but not claiming lack of informed consent, for unknown reasons.

The endodontist notified her malpractice insurance carrier upon being served with papers, and defense attorneys were assigned. By way of the usual exchange between counsel at the early stages of litigation, the claims of negligence were quite specific: improper injection technique and inappropriate use of Septocaine for a mandibular block injection, thereby causing permanent injury to the left inferior alveolar nerve.

Litigation events

Following the deposition testimony of the patient, now plaintiff, the deposition of the endodontist was scheduled. In preparation, the endodontist and her attorneys met several times, to fully advise her of the process and make sure she knew the types of questions she could reasonably expect. During and outside of these sessions, she reviewed the details of the anatomy and pathways of the inferior alveolar nerve and the other cranial nerves which course the oral cavity, planned her explanation of every detail she used in her block injection technique, which was being criticized as negligent, and reviewed scientific information about Septocaine and the other frequently used local anesthetics.

At deposition, she testified that, although she could not remember giving this particular injection some two years prior, she always used and still uses the same technique every time, which she provided in “textbook” fashion. Questioning about Septocaine was detailed, particularly focusing on a number of published papers which anecdotally described cases of paresthesia following block injections of Septocaine in non-surgical settings; she fully expected this line of questioning and did not provide any testimony counter to her position.

Here, the injury was not a questioned issue, but a viable case of dental malpractice requires that a negligently-performed procedure, as opposed to simply a procedure, be the cause of the injury. So, without any evidence from which the plaintiff’s dental expert could conclude that the injection technique was improper, i.e. negligent, that claim was withdrawn, leaving the only remaining claim that Septocaine should not have been used for a mandibular block injection due to its propensity to function as a neurotoxin and cause nerve injuries.

In the lead-up to trial, defense counsel asked the judge for a Frye Hearing, given the one very limited issue and its nature. In the many states that employ this standard, this type of hearing seeks to establish whether the theory — here, that Septocaine is neurotoxic and, therefore, should not be used for block injections — is one that is “generally accepted in the relevant scientific community”, or, instead, “junk science”, the latter of which is inadmissible. At the Frye Hearing, plaintiff’s expert general dentist argued that Septocaine is a known neurotoxin not to be used for mandibular blocks, with Lidocaine or Carbocaine the proper drugs for that purpose; on cross-examination by defense counsel, the expert was unable to reference any publication which was anything but an anecdotal case report, and he also acknowledged that there had been reported cases of nerve injury following injections with Lidocaine and Carbocaine.

Defense counsel produced a dental school faculty member in the endodontics department who had additional training in biochemistry. This expert testified that formal research studies in refereed journals had debunked the neurotoxicity theory, provided copies of those studies to the court, and explained why, from a biochemical standpoint, neither Septocaine, Lidocaine nor Carbocaine was neurotoxic. The dental community, this expert explained, does not accept the approach of the plaintiff, and has not for some time. The judge concluded that the plaintiff had not demonstrated scientific community acceptance of his theory. With nothing else left in plaintiff’s case, his attorney discontinued the case.

Takeaways

Even though this case did not contain a claim of lack of informed consent, most dental malpractice case filings do have such a claim, and the facts here certainly would have justified it and would have been a challenge for the defense to overcome. With State differences as to specifics, the general proposition regarding informed consent requirements is that a patient must be advised before a procedure of the foreseeable risks, the benefits, and the viable alternatives with their risks. Here, the endodontist specifically excluded the risk of paresthesia due to the distance of the tooth from the mental foramen, but paresthesia does at times occur following mandibular block injections. It raises a question to be considered as to whether giving a block injection for any procedure warrants such a warning; we do not provide an answer, as that choice belongs with the dentist’s judgment, based upon a number of factors associated with a given set of circumstances.

This case contains two situations where referrals were made, the first from the general dentist to the endodontist to perform the procedure, and the second to an oral surgeon when a problem arose. As to whether to perform a procedure or refer the patient, dentists properly base their judgments in this regard upon their own training and experience, and the specific patient circumstances and needs. When complications develop, the assessment is essentially the same, with the added factor of whether the time within which action must be taken for the patient’s well-being is limited. In litigation, dentists are often questioned about whether s/he had an adequate level of skill to have performed a procedure or evaluation, as compared with a dental specialist, so this thought process is always a beneficial one.

The defense attorneys’ preparation of the endodontist for deposition proved valuable and case-changing by focusing their client into the relevant areas of planning. Similarly, the endodontist became thoroughly acquainted with all of the case subject matters in order to best be able to advocate for herself; she did a review of research and re-familiarized herself with anatomy. Litigation is a team effort between client, attorney, expert witnesses, and insurance company.

Problems do sometimes occur following dental treatment, but that does not necessarily equate to malpractice. Good records which document events and findings are, perhaps, the most valuable tool for defense attorneys.

Finally, the use of a less-than-common pre-trial technique, the Frye Hearing, proved dispositive. It is not expected that dentists would be at all familiar with it, but it demonstrates how an insurance carrier and its experienced defense attorneys can team up for a successful result.

Case Study

Are You Ready to Perform Sedation Dentistry?

Marc Leffler, DDS, Esq.

Background facts

A general dentist in practice for over 30 years (“Dr. E”) decided to take advantage of a change in her state’s laws regarding dentists being permitted to provide sedation in conjunction with dental procedures, by attending a weekend course on dental sedation management. Dr. E maintained BLS certification, as did one of her three dental assistants. Brochures in her office waiting room made it known that patients could now be provided with sedative medications, and a similar update was added to the practice’s website.

A longstanding 73-year-old male patient (“Mr. Q”) who was 5’10” tall and weighed 255 pounds, with hypertension (treated with a beta-blocker) and Type II diabetes (treated with an oral hypoglycemic and “diet”), appreciated having all of his dentistry performed in one office setting by Dr. E, whom he had known for many years. Over time, she had provided him with treatment in nearly all phases of dentistry (fixed prosthodontics, periodontics, endodontics, and a mandibular advancement device for obstructive sleep apnea [OSA]), and he was now in need of transitioning toward a maxillary implant-supported prosthesis because the fixed bridge abutment teeth had become increasingly periodontally involved. Working together, they agreed on a plan which involved the extraction of the remaining upper teeth and the placement of an immediate maxillary denture, with implants to be placed at a later date.

With Dr. E now offering sedation dentistry, Mr. Q requested sedation for the extraction phase, and Dr. E agreed. An appointment was scheduled for a month later, by which time the laboratory-fabricated denture would be ready. In preparation, the patient was told to refrain from taking anything by mouth after midnight and up to his 11:30 a.m. appointment. Dr. E saw no need to obtain a medical consultation because she knew the patient quite well and believed that his health status had been unchanged for over a decade. Mr. Q complied with every aspect of the pre-treatment instructions he had been given.

The patient presented to the office on the morning of treatment, accompanied by his adult daughter. Dr. E seated her patient in a “supplemental” treatment room and gave him a 10 mg tablet of diazepam and a hydrocodone-acetaminophen tablet, with the goals of sedation and pain abatement by the time treatment would start about 30 minutes later. She told him to lay back in the chair and relax, while she turned out the room lights and went to treat another patient. Approximately 15 minutes later, she looked in on Mr. Q, to find him sleeping and snoring loudly. But, from the adjacent room, she soon heard the snoring abruptly stop, replaced by gurgling and what she would recall to be an “odd gasping sound”.

Dr. E went to check on her patient and found him not responsive to her speaking or hand pressure. Because this room was generally not used for treatment, but rather just examinations and post-operative checks, it was not equipped with oxygen, so she asked her assistant to bring in the centrally-hooked in N2O/O2 set-up from another room. By the time the assistant was able to disassemble that equipment and attach an O2 canister, an estimated 6-7 minutes had elapsed. Dr. E finally applied 100% O2 through a nasal mask, as she did not have a full face mask in the office, so she had no means to force the flow into Mr. Q’s lungs. There was no pulse oximeter available. While she had been trained in CPR techniques, the statute had not required (and she did not complete) ACLS training, so there was neither a laryngoscope nor an endotracheal tube in the office. At this point, Dr. E instructed a staff member to call 911. By the time paramedics arrived and transported him to a hospital, Mr. Q was pronounced dead.

Despite his age, an autopsy was performed due to the circumstances. Among the findings of the coroner were that the patient had died of asphyxiation due to an obstructed airway, and hypoxemia. His pre-existing OSA (which was well-known to Dr. E, but apparently not adequately considered) played a significant role in this series of events coming to fruition.

Legal action

Shortly after Mr. Q’s estate was in place, relatives hired an attorney who obtained Dr. E’s office records, which were evaluated by a dentist anesthesiologist. Based upon the review of that practitioner, the attorney wrote a letter to Dr. E, in which he demanded a monetary settlement following a list of claimed acts/omissions of negligence which were claimed to have caused the patient’s death: failure to obtain medical clearance; failure to directly monitor the patient after the delivery of sedative and narcotic medications; failure to consider and account for the patient’s underlying conditions, specified as age, obesity, diabetes, OSA, and hypertension; failure to have training and knowledge regarding the use of resuscitative equipment; failure to have the necessary emergency equipment available and ready to use; failure to train office staff as to how to respond to medical emergencies; and failure to timely contact emergency responders.

The letter concluded with the threat that, if the matter was not settled within a stated time period, the family would seek criminal prosecution of the dentist based upon “gross negligence”. As an aside, this threat led to a disciplinary inquiry against the attorney. Because expert support for the dentist’s actions could not be obtained, Dr. E’s professional liability carrier reached a pre-suit settlement with the estate, for an amount which took into account the patient’s age and pre-existing medical conditions. Dr. E was not criminally prosecuted, but she was sanctioned by her State’s Dental Board.

Takeaways

The author is reminded of his father’s words many years ago, after passing a road test and becoming a licensed driver: “Just because the state gave you a license to drive doesn’t mean you know how to drive.” Similarly here, Dr. E had fulfilled the basic requirements of her state’s regulations for the use of sedation in conjunction with dentistry, but that was demonstrated in this case study to be far less than what was needed to safeguard her patient under these circumstances. Dentists are wise to recognize and constantly uphold the concept that they must “do no harm”, and, as a corollary, realize that the lawful ability to perform treatment does not equate to a technical or academic level of expertise to safely and properly perform that treatment. Practicing within one’s abilities means not only managing procedures, but the ability to manage complications and the judgment to know when not to engage in the first place, despite whatever pressures may be placed by external sources—whether patients or employers.

While it is fairly infrequent for the norms of dentistry to differ between states, the areas of enteral and parenteral sedation, as well as general anesthesia, are clear exceptions. Dentists who practice on the borders of neighboring states may be fully permitted to sedate their patients in one of their offices, while strictly forbidden from doing so in another. Therefore, dentists should become aware of what local laws do and do not allow, and should periodically familiarize themselves with changes that come about, in order to protect themselves and their patients. Organized dentistry groups often establish guidelines, but they do not establish local laws and they do not have the ability to govern dental practice. So reliance on such guidelines, alone, may lead dentists astray.

The issue of obtaining medical consultation or clearance in advance of dental procedures has been a concern for years, and its need continues to grow as the population ages and more medical treatment solutions extend lifespans. Dentists are not expected to be as expert regarding medical issues as their physician colleagues, but dentists should know when to seek the input of treating physicians. It should not “bother” physicians to assist in the dental health of their patients, but even if they appear to be inconvenienced by a question from a dental colleague, that cannot serve as an excuse for failing to obtain a needed consultation. Finally on this subject, good risk management dictates documentation whenever such a consultation takes place, ideally by a writing (letter, email) from the physician, but at least by way of a contemporaneous chart entry by the requesting dentist in which the physician is identified and the guidance is detailed.

When sedation is used by dentists, complete familiarity with all medications employed is an absolute. So, too, are the concepts of titration and dose, so as to allow the patient to be adequately sedated, but not overly so, the latter situation greatly increasing risk. In some patients, especially if older, sedatives and/or narcotics have been known to lessen a patient’s drive to breathe, so caution must dictate. And the need to take, follow, and record vital signs cannot be ignored.

This case study involves a patient with numerous medical problems, some of which are generally addressed here. While all deviations from medical norms deserve due consideration, common conditions which are often seen as sources of malpractice suits include patients taking anticoagulants (bleeding concerns); patients with certain structural cardiac anomalies (potential need for antibiotic coverage); diabetes (increased infection risk, and management of empty stomach while maintaining adequate circulating glucose levels in sedation/general anesthesia settings); OSA and obesity (airway concerns, especially with sedation/general anesthesia); osteoporosis (impacts of bisphosphonates); and uncontrolled hypertension (stroke concerns). Careful medical history reviews and updates are critical to the sound medical stability of dental patients, whether sedated or not. As the old dental school adage goes, the teeth are connected to the body.

The final point here is to recognize that all team members of a dental staff have uniquely important roles in the safe practice of dentistry. Maximizing their regular and ongoing training will provide a sense of comfort among their dentist employers and an extra layer of protection for patients. It is often not until a problematic issue arises in an office that the value of the staff is truly appreciated.

Case Study

Anterior Endodontic Treatment Leading to Paresthesia

Background facts

Legal status

Litigation events

Takeaways

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Are You Ready to Perform Sedation Dentistry?