1 Ch43-A /19/06 11:51 AM Page 489 C H A P T E R 4 3 Dentistry Daniel L. Orr GOLDEN RULES 1. Document treatment options, including no treatment, in the record as the treatment options are developed. 2. Document informed consent for the treatment options. 3. Be very wary of collegial criticism without at least consulting your colleague. 4. Document any extraordinary front office arrangements, such as financial planning, special after-hours appointments, etc., and always have at least one staff member present during any doctor patient interview or treatment. 5. Request that your staff advise you of any patient staff controversy. 6. Follow the ADA s Code of Professional Conduct recommendations regarding emergency or after-hours care. 7. Consider maintaining hospital staff privileges and when possible direct one s patient to one s own staff hospital. 8. Always be the primary decision maker with regards to dental-legal issues, such as requests for records. 9. Be knowledgeable regarding the requirements for effective coverage from your liability carrier. 10. Be cautious about turning patients over to a collection agency. Consider personally approving all such dispositions. Liability claims for alleged dental malpractice have been somewhat under the radar compared to medicine. However, dentists are held to the same set of rules as physicians and other health professionals with regard to the tort of malpractice, the most common legal theory used by plaintiff patients to secure remuneration for alleged wrongs. 1 One of the most common bases for claims for damages in dentistry is for removal of the wrong tooth, a somewhat limited scope of damage. However, often the damage associated with alleged dental malpractice can be more severe, e.g., the N2 paste endodontic sequelae of the 1980s. 2,3 Ultimately dental treatment can result in any complication seen with medical treatment, including death. Several reviews of the actual statistics related to alleged dental malpractice are available, although differing findings are seen. For instance, Seidberg reports that 15 25% of claims from various insurance sources include endodontics, simple extractions, and crown/bridge work
2 Ch43-A /19/06 11:51 AM Page Liability of Specialties Sanbar reports that private practitioners are those most often sued and that claims usually involve faulty management/performance of treatment, unsatisfactory technical/esthetic quality, and wrong diagnosis/indication. 5 Governmental reports from the U.S. National Practitioner Data Bank, the U.S. Department of Health and Human Services, and the U.S. Department of Justice are seen in Table The following case history will serve to illustrate several important legal considerations for office-based private dental practitioners to remember when faced with potential legal liability. CASE PRESENTATION A 34-year-old married father in relatively good health presented for an initial screening examination. The patient s chief complaint was of a chronic toothache associated with tooth number 20. Historically, the patient related that he had seen another dentist for the complaint and had been told that the best option was to remove the tooth because that was the least expensive way to go. The patient currently insisted that he preferred to save the tooth. Clinically, no.20 was moderately broken down, but restorable. Radiographically, a 2 3 mm periapical radiolucency was evident. There were no signs of inflammation or evidence of an acute infection during this examination. The practitioner opined that indeed the previous dentist was in error and that no.20 could likely be salvaged via endodontic therapy and a full-coverage restoration. When the patient was presented with the proposed treatment plan and associated fees, he shared that he couldn t afford the treatment at that time but would soon be in touch. The patient, also an artist, offered to exchange services. The screening appointment ended with an admonition to address the pathology in a timely manner. The patient paid one-half the examination fee and committed to submit the balance within two weeks. The patient did not follow up with an appointment for treatment or by remitting the balance of the examination fee and was subsequently turned over to a collection service by front office staff three months after the office examination. Six months after the screening appointment, the dentist s staff received a request from the patient s spouse for the patient s records. The front office staff promptly forwarded the patient s records without advising the defendant dentist of the request. At nine months after the screening appointment, the dentist was served with legal papers alleging dental malpractice including misdiagnosis, improper treatment planning, improper treatment, and abandonment, all resulting in significant morbidity. At this point in time the dentist notified his carrier about the claim. ISSUES Patient s Deposition During discovery, the dentist was apprised of additional allegations that he had previously been unaware of. At the patient s deposition, the patient sat
3 Ch43-A /19/06 11:51 AM Page 491 Dentistry 491 Table 43 1 Dentistry malpractice statistics Medical malpractice lawsuit payment statistics for dentist malpractice in the U.S.A: Roughly 5% of medical malpractice trials related to dentists in the 75 largest counties in the U.S (Bureau of Justice Statistics, U.S. Department of Justice) 12.1% of medical malpractice payment reports were against dentists in the U.S (2002 Annual Report, National Practitioner Data Bank, U.S. DHHS) Roughly 38.9% of medical malpractice trials against dentists were won by the plaintiff in the 75 largest counties in the U.S (Bureau of Justice Statistics, U.S. Department of Justice) Medical malpractice lawsuit payment report statistics for dentist malpractice in the U.S.A: 17,469 malpractice payment reports were made against dentists in the U.S (The National Practitioner Data Bank Public Use File) 15% of malpractice payment reports were made against dentists in the U.S (The National Practitioner Data Bank Public Use File) Medical malpractice lawsuit statistics for dental malpractice in the U.S.A: 8 medical malpractice reports were made to the National Practitioner Data Bank regarding dental assistants in the U.S (NPDB Summary Report, National Practitioner Data Bank, U.S. DHHS) 17 medical malpractice reports were made to the National Practitioner Data Bank regarding dental hygienists in the U.S (NPDB Summary Report, National Practitioner Data Bank, U.S. DHHS) 137 medical malpractice reports were made to the National Practitioner Data Bank regarding dental residents in the U.S (NPDB Summary Report, National Practitioner Data Bank, U.S. DHHS) 34,691 medical malpractice reports were made to the National Practitioner Data Bank regarding dentists in the U.S (NPDB Summary Report, National Practitioner Data Bank, U.S. DHHS) 19 medical malpractice reports were made to the National Practitioner Data Bank regarding denturists in the U.S (NPDB Summary Report, National Practitioner Data Bank, U.S. DHHS) Medical malpractice statistics for the U.S.A. 2003: 27,793 (13.5%) dentists had a malpractice report made against them in the U.S (2003 Annual Report, National Practitioner Data Bank, U.S. DHHS) 45,166 (13.1%) malpractice reports were made against dentists in the U.S (2003 Annual Report, National Practitioner Data Bank, U.S. DHHS) Dentists had an average of 1.63 malpractice reports made against each of them in the U.S (2003 Annual Report, National Practitioner Data Bank, U.S. DHHS) Medical malpractice statistics for the U.S.A. 2003: 24 (0.01%) dental assistants, technicians and hygienists had a malpractice report made against them in the U.S (2003 Annual Report, National Practitioner Data Bank, U.S. DHHS) 25 (0.01%) malpractice reports were made against dental assistants, technicians, and hygienists in the U.S (2003 Annual Report, National Practitioner Data Bank, U.S. DHHS) Continued
4 Ch43-A /19/06 11:51 AM Page Liability of Specialties Table 43 1 Dentistry malpractice statistics cont d Dental assistants, technicians and hygienists had an average of 1.2 malpractice reports made against each of them in the U.S (2003 Annual Report, National Practitioner Data Bank, U.S. DHHS) Medical malpractice statistics for the U.S.A. 2003: 10 (0.005%) denturists had a malpractice report made against them in the U.S (2003 Annual Report, National Practitioner Data Bank, U.S. DHHS) 10 (0.003%) malpractice reports were made against denturists in the U.S (2003 Annual Report, National Practitioner Data Bank, U.S. DHHS) Denturists had an average of 1.0 malpractice reports made against each of them in the U.S (2003 Annual Report, National Practitioner Data Bank, U.S. DHHS) Medical malpractice statistics for the U.S.A. 2003: 4 (0.03%) dental assistants, technicians, and hygienists had a malpractice report made against them in the U.S (2003 Annual Report, National Practitioner Data Bank, U.S. DHHS) 3 (0.01%) malpractice reports were made against dental assistants, technicians, and hygienists in the U.S (2003 Annual Report, National Practitioner Data Bank, U.S. DHHS) Medical malpractice statistics for the U.S.A. 2003: 1418 (10.6%) dentists had a malpractice report made against them in the U.S (2003 Annual Report, National Practitioner Data Bank, U.S. DHHS) 2540 (9.6%) malpractice reports were made against dentists in the U.S (2003 Annual Report, National Practitioner Data Bank, U.S. DHHS in a wheelchair, was blind in the left eye, and had compromise of other motor and sensory nerves of the left face. During the deposition, the patient was unable to control salivary secretions and constantly used a towel in an attempt to control his drooling. The patient testified that at the screening appointment he asked the defendant dentist what he should do about his chronic toothache in no.20. The patient stated that he had previously determined to remove the tooth based on another dentist s advice but that the defendant had talked him into trying to save no.20. The defendant s root canal and crown treatment plan would have cost about ten times more than the extraction of no.20. The patient also testified that he told the defendant he could not afford to pay cash for the treatment but offered to trade artwork for the therapy. The patient then stated that he had called the office a week later to schedule an appointment and that the receptionist refused to schedule him as he did not have the cash balance for initial examination, let alone the planned root canal. Approximately a month later, the patient noted acute swelling near no.20 one evening. He called the defendant s office for help and was told by an answering service that the defendant was on vacation and to call back in a week. When the patient expressed his concern that he had a serious emergency, the answering service instructed him to call 911 or go to a hospital. The patient did go to a local emergency room and was admitted by a physician general practitioner. Within several hours the patient began to deteriorate
5 Ch43-A /19/06 11:51 AM Page 493 Dentistry 493 neurologically and was admitted to the ICU where multiple diagnostic procedures were initiated on an emergency basis. The diagnosis reached was that of an intracranial central nervous system abscess. Additional consults from Infectious Disease, Neurosurgery, and other specialties were obtained. The dental service, including Oral and Maxillofacial Surgery, was not consulted. The patient underwent a neurosurgical procedure in which a copious quantity of pus was drained. After the general anesthetic agents had been metabolized, the patient remained unconscious and comatose for several weeks until he slowly began to recover. When the patient was finally discharged to a long-term care facility, the admitting general practitioner opined in the discharge note that no one had definitively identified the etiology of the infection but that it was probably dental. In his deposition, the patient stated that he had never been informed that a toothache could cause a brain abscess. While in rehabilitation, the patient had applied for financial assistance for ongoing medical bills already totaling well into six figures. During this time frame, the family received notice that they had been turned over to collections by the defendant dentist s office for not paying half of his screening examination fee. Dentist s Deposition During the defendant dentist s deposition, the office records were produced to reconstruct the interaction between the plaintiff and the dentist. The records supported the plaintiff s statements that the defendant had opined that the first dentist was wrong and that the tooth could be saved with endodontic therapy. There was notation in the records about a follow-up as needed appointment. No writing about informed consent regarding the proposed treatment or alternative treatments, financial arrangements, or subsequent calls by the plaintiff were seen. The answering service did have a record of the after-hours emergency call placed by the plaintiff. Expert and Legal Counsel Evaluation The defendant s liability company retained an oral and maxillofacial surgeon as an expert witness to analyze the case. Part of the defense focused on plaintiff questions such as the lack of an antibiotic prescription at the initial appointment and the discharge note relating the central nervous system abscess to the dentition. However, the expert and defense counsel also agreed that several areas of legal, as opposed to dental, concern regarding the defendant s conduct existed: 1. A lack of documentation that although endodontic therapy was recommended, extraction was a viable option and observation was not recommended. 2. A lack of any documentation regarding informed consent about recommended treatment or alternative treatments, including no treatment, other than the follow up prn note.
6 Ch43-A /19/06 11:51 AM Page Liability of Specialties 3. The charted negative statement about the first dentist s treatment planning. 4. The lack of records regarding special financial arrangements. 5. The lack of office records memorializing any controversial contact with the front office and the fact that the defendant was not advised about any such contact. 6. The lack of more optimal coverage for the defendant s practice while he was unavailable and the fact that the defendant had not been advised about the plaintiff s call to his answering service. 7. The finding that although the defendant had hospital privileges, the patient had elected to go to a hospital where the defendant did not have privileges. 8. The fact that the defendant s front office staff had forwarded the plaintiff s records without advising the dentist of the request for records. 9. The concern that there was a significant delay in contacting the defendant s liability insurance carrier from the time that records were initially requested. 10. The fact that the doctor s billing office had turned the patient over to collections without the dentist s approval. In addressing the legal conduct concerns, the following opinions were formed relating to 1 10 above: 1. Optimally the records will reflect a considered evaluation and resulting opinion regarding the therapeutic options open to a patient. There is generally no single perfect treatment plan, but several viable treatment options, ultimately depending on the totality of the presenting signs, symptoms, patient history, and patient and doctor preferences. Records can be the most effective resource for the defense in a liability issue if carefully written. Careful writing would most likely include some evidence of the thought process including differential diagnosis, differing treatment options, and practitioner and patient preferences for treatment. 2. Part and parcel of the differential diagnosis and treatment options presented is the provision of informed consent. Informed consent entails advising the patient of the reasonable treatment options and the risks and benefits of each of those treatment options, including no treatment at all. 6 A lack of documented informed consent may be interpreted by a jury as evidence that such a discussion was never held. (A copy of the author s general written informed consent read as follows.) ORAL AND MAXILLOFACIAL SURGERY CONSENT The oral surgery procedure to be performed has been explained to me and I understand what is to be done. This is my consent to the oral surgery indicated on the surgery record and to any other surgery deemed necessary or advisable in addition to the planned operation. I agree to
7 Ch43-A /19/06 11:51 AM Page 495 Dentistry 495 the use of local or general anesthesia depending on the judgment of Dr. Daniel L. Orr II. I have been informed and understand that occasionally there are complications of the surgery, drugs, and anesthesia. The more common complications are pain, infection, swelling, bleeding, bruising, and discoloration, temporary or permanent numbness and tingling of the lip, tongue, chin, gums, cheeks or teeth. It has been explained to me that pain and numbness and occasionally inflammation of the vein (thrombophlebitis) may occur from the intravenous or an intramuscular injection. Mortality from anesthesia only has been estimated at 1/400,000. The possibility of injury to or stiffness of the neck and facial muscles, changes in the occlusion or temporomandibular joint have been explained. The doctor has discussed with me the possibility of injury to the adjacent teeth, restorations in other teeth, or injury to other tissues, referred pain to the ear, neck, head, bone fractures, and delayed healing. The combination of stress, anesthesia, and surgery may lead to nausea, vomiting, allergic sensitivity or psychological reactions. Sinus complications which may include a nasal-antral fistula or opening into the sinus from the mouth may occur from removal of upper teeth. Injury to tissues may occur secondary to instrument failure. Medications, drugs, anesthetics, and prescriptions may cause drowsiness and lack of awareness and coordination which could be increased by the use of alcohol or other drugs; thus I have been advised to not operate any vehicle or hazardous devices, or work while taking such medications and/or drugs or until fully recovered from the effects of the above. I understand and agree not to operate any vehicle or hazardous devices for at least 24 hours or until fully recovered from the effects of the anesthetic, medication, and drugs that may have been given me in the office for my care. I acknowledge the receipt of and understand the postoperative instructions and have been given an appointment date to return. It has been explained to me and I understand that there is no warranty or guarantee as to any result and/or cure. I understand that most complications can be rectified with proper follow-up care. I agree to follow up with Dr. Orr at any time as needed or advised for any complications. I understand I can ask for a full recital of any and all possible risks attendant to my care by just asking. I understand insurance, including Medicare, will not pay for all services requested and that I will be responsible for any financial obligations incurred in the course of diagnosis or treatment. Signature Signature Date Date 3. Practitioners would be well advised to be very circumspect with regard to offering any criticism of a colleague, particularly without personally communicating with that colleague. A patient s subjective history and recollection of prior health professional interactions are notoriously inaccurate. 4. Financial arrangements that are out of the ordinary for one s practice should be documented in the financial records. In today s world,
8 Ch43-A /19/06 11:51 AM Page Liability of Specialties barter for health services is usually not the norm. Aggressive plaintiff attorneys presented with an alleged barter have been known to even subpoena tax records to see if the value of such transactions was reported to the IRS. 5. Trusted office staff should be sensitive enough to know when the doctor needs to be advised about any confrontational or less than satisfactory patient/office staff interaction. Patient comments insisting that the doctor said or agreed to something out of the norm regarding finances or otherwise should not be summarily rejected by staff. Strong consideration should be give to advising the doctor about all such conversations. 6. The ADA Code of Professional Conduct mandates that dentists are responsible to provide reasonable arrangements for emergency or after-hours care 7 for their practices when they are unavailable. Call 911 or go to the ER instructions generally do not require any effort or special arrangements on the part of the practitioner who may be unavailable. In the author s opinion, it is unlikely that such instructions would satisfy the ADA s CPC recommendation. One needs to be cognizant of the potential attendant legal ramifications that follow such cavalier call arrangements. Additionally, part of the responsibility for reasonable arrangements likely includes mutual communication and follow-up between the individuals or other agents covering one another. 7. Hospital privileges certainly are not mandatory for many typical dental practices. However, if one does have hospital privileges, it seems reasonable that any practice patient hospitalized for a practice or other dental-related condition would be referred to a hospital that the practitioner has access to. Advantages to notifying staff, other covering dentists, answering services, and patients of the hospital of choice are obvious. Especially important is the fact that the dentist has convenient continued access to the hospitalized patient and is not on the outside looking in as his patient is evaluated and treated by others. 8. Prudent office policy might include direction to one s staff that any patient communications that are not uniformly positive should be reported to the dentist daily. Not only might patients be right, but occasionally dependable staff members may have bad communication days, something an insightful doctor cannot allow to occur without his knowledge. Almost any staff member can deal successfully with happy patients, but only the doctor should be responsible for rectifying unresolved non optimal interactions between staff and patients. 9. The injudicious unconsidered release of records is an occurrence related to a lack of communication for what is generally an unusual request, i.e., for records. Most often, requests for records should be passed on to the doctor for his approval prior to the records release. In addition, some liability policies allow insurers to defer or deny coverage for less than timely notification of possible incidents. A request for records may be indicative of a situation that one s liability carrier should be advised of.
9 Ch43-A /19/06 11:51 AM Page 497 Dentistry Similar to other adverse interactions, turning a patient over to a collection agency should probably only be done after careful consideration by the doctor, not by a potentially disgruntled, frustrated, or less informed staff member. The ten iterated legal concerns above had to be addressed during the course of discovery prior to trial in addition to the plaintiff s alleged treatment deficiencies. Fortunately, the defendant s insurer elected to provide coverage for the case in spite of the less than timely notification about the request for records. The defense expert s opinions about the dentist s actual treatment and about the causation and management of the CNS abscess truncated an in-depth plaintiff analysis of the legal concerns noted. Defense Expert s Deposition During the defendant expert s deposition, a strong opinion was proffered that it was not the standard of care to prescribe antibiotics for chronic odontalgia alone. In fact, he opined that it would be below the standard of care to do so whether a periapical radiolucency was present or not. The potentially problematic issue of a lack of informed consent was also addressed. The defense expert explained that reasonable informed consent for the endodontic therapy and extraction options available for chronic odontalgia in a broken-down tooth would include, optimally, the retention of a functional tooth versus, at worst, the loss of the tooth. He opined that it is not ordinary or reasonable to routinely advise chronic odontalgia patients that they could be exposed to a toothache-related brain abscess or near death. No objective literature that definitively related CNS abscess to chronic odontalgia was identified, confirming the rarity of the relationship if it occurs at all. Finally, the plaintiff treating physician/expert s opinion that the CNS infection was of odontogenic etiology needed to be addressed. The defendant OMS expert pointed out several non-sequiturs relative to this case. Included was the fact that in spite of the plethora of medical experts consulted and battery upon battery of diagnostic tests performed during the prolonged hospitalization, periapical or panoramic radiographic studies were never obtained. A dentist or oral and maxillofacial surgeon was never consulted during the patient s admission. No objective attempt was ever made to correlate the bacteria from the CNS abscess with any bacteria present in no.20, which was also asymptomatic during the hospital stay. The OMS expert mentioned that many more commonplace things than chronic odontalgia, such as toothbrushing, can cause transient bacteremia. 8 Finally, the defense expert pointed out that the plaintiff expert/treating physician who opined that the abscess was likely secondary to pathology in no.20 never addressed the treatment of this CNS and life-threatening tooth during hospitalization. Not only was no.20 never treated in the hospital, the physician s discharge orders never mentioned the need to follow up with a dentist for the still retained life-threatening no.20.
10 Ch43-A /19/06 11:51 AM Page Liability of Specialties Case Resolution The case was settled for a nominal four-figure amount within a week after the defense expert s deposition. In spite of the efficient disposition of this particular case, dentists would be well advised to avoid repetition of the questionable dental-legal related conduct seen in this defendant s office. REFERENCES 1. Malamed, SF; Orr DL, Handbook of Local Anesthesia, 5th ed., Legal Considerations chapter. Mosby, St. Louis: pp Orr DL, Paresthesia of the Trigeminal Nerve Secondary to Endodontic Manipulation with N2. Headache 25(6); (1985). 3. Orr DL Paresthesia of the Second Division of the Trigeminal Nerve Secondary to Endodontic Manipulation with N2. Headache 27(1); 21-22, (1987). 4. Seidberg, BH, Legal Medicine 6th Edition, (chapter 48, Dental Litigation: Triad of Concerns ), Philadelphia; Mosby, 6th ed. 2004, p Sanbar SS, personal communication, Orr DL; Curtis, WJ, Obtaining Written Informed Consent for the Administration of Local Anesthetics in Dentistry, JADA 136: (2005). 7. ADA Code Principles of Ethics and Code of Professional Conduct, Sec. 4B. 8. Orr DL, Controlling bacteremia, JADA, 109(6); 876,(1984).