Alleged delayed diagnosis and referral leads to $20K settlement

Dental Expressions®--From the CNA Claim Files

Practitioner:  General practitioner (GP)  
Subsequent practitioner: Endodontist; Oral-maxillofacial surgeon (OMFS) 
Claimant: 27-year-old male

Risk management topics:  Failure to diagnose; inadequate documentation; subsequent practitioner comments

August 17: The patient sought care with his GP for an examination and cleaning. The healthcare record note included: “Exam, FMX, prophy.”   

January 11, following year: The patient returned six months later and the chart note indicates: “Good hygiene will come back for nightguard and bleaching trays.  Sensitivity after last bleaching.  NV:  prophy 6 months.”   
February 15: This visit to the GP’s office is driven by pain in the lower anterior.  The patient record indicates: “Periapical of 25 and 26 taken: [Patient] has been having severe pain in this area.  Noticed tooth moving, been grinding…Refer to endo stat…Large radiolucency at apex of 24, 25, 26 area.”

February 16:  The patient is seen by the recommended endodontist.  The endodontist documents in the patient record: “Root canal on 25 and 26 completed by another endodontist 10 years ago. Flare up 8 months ago, resolved in few days. Large diffuse radiolucent area. Referred to [OMFS].” 

February 24: Utilizing general anesthesia, the OMFS completes an apicoectomy of 25 and 26, and submits excised tissue for biopsy.

March 1: The biopsy report documents a one year history of pain at the site of 25 and 26. Clinical differential diagnosis: chronic apical periodontitis, or central giant cell tumor. Pathology report: chronic apical periodontitis (dental granuloma).  

March 3: The patient spoke with the OMFS and expressed his disappointment about the care provided by his GP: he specifically referred to a delayed diagnosis and stated that he has contacted a lawyer.  The OMFS documented the discussion: “Considering the size of the lesion, a delay of a few months wouldn’t have made much difference in the size of the lesion or its treatment.  It was likely that the lesion was there for quite some time and the endodontist referral a reasonable recommendation.”

March 9: The patient calls the OMFS on his personal cell phone. The patient repeatedly questioned his GP’s judgment and why it took him so long to address his lower incisors.  The OMFS’s notes indicate that he: “responded that [he] could not make a fair and honest assessment because [he] didn’t know what [the GP] had done or his course of treatment prior to me seeing [the patient].”  

The patient then requested that his treatment records and pathology reports not be sent to any other provider.  The OMFS informed the patient that the pathology and procedure report had been sent to the referring endodontist on the day of surgery, pursuant to customary protocol. The OMFS informed the patient that no further reports would be shared with anyone without his approval.  

March 15: The GP offered to pay for any subsequent treatment needed by the patient.

March 17: The GP called the OMFS to discuss the case and the surgeon documented: “I did not give [the GP] any information.  I apologized for not being able to share any information on the patient’s care: I had to respect [the] patient’s wishes and confidentiality.  [The GP] was polite and said thank you and we ended the conversation.”  

August 15: The OMFS decides the long-term prognosis of 25 and 26 is poor, and recommends extraction of 23, 24, 25, 26, followed by the placement of dental implants in area of 23 and 26. 

Key allegations: Delayed diagnosis and referral  

Claimed injury/damages: Apicoectomy of 25 and 26; eventual loss of 23-26  

  • Inadequate records. 
    • This claim boils down to failure to diagnose the mandibular lesion on the August 17 visit.  Although the patient later reported he had been suffering pain for over a year, the GP’s records of August 17 are silent on complaints, test results, assessment or recommendations. The documentation looks like a billing statement instead of a progress note, making defense of this claim difficult. Were the radiographs reviewed? The results of all tests, including radiographs, should always be documented. 
    • The notes for the next patient visit reflect those customarily made by hygienists after a routine prophylaxis and exam.  This note provides a bit more information though a statement that the patient had no complaints or pain would have been helpful for the defense.
  • HIPAA compliance.  
    • Specialists routinely provide treatment reports and other patient information to the referring dentist. However, when a patient requests that records not be shared, that request must be honored. Subsequent record releases must be approved by the patient and documented.
    • The failure to observe/document the lesion on radiographs taken during the August 17 visit is the lynchpin of the patient’s claim. One mitigating factor---even if there was a failure to conform to the appropriate standard of care, there still must be resulting damages. In this case, there is no evidence to support a claim that the apicoectomy would have had a better outcome had the diagnosis been made at the August 17 visit.  Additionally, the GP offered to pay for all subsequent dental treatment in an attempt to address his patient’s dissatisfaction.  Because the dentist was not precise in his language, the patient assumed that the offer encompassed all costs (leading to additional patient anger).  It is important to be very clear when making an offer to assume a patient’s subsequent treatment expenses.
    • Even when pressed, the OMFS refused to offer judgment on the care provided by the GP beyond the facts known to him.  The surgeon also displayed good judgment in obtaining a general release allowing disclosure of the patient’s records to the referring dentist, and in honoring the patient’s wishes to keep all records private once that release was withdrawn. Such a request would not apply to legally required release of records, such as release for defense of a professional liability case. 
  • Inter-professional relations. 
    • A specialist walks a tight rope every day in diagnosing a patient’s needs without incriminating the referring dentist.  It is always best to confine all commentary to known facts and avoid judgments based on suppositions about what might have been seen by the referring dentist.  
  • Patient management. 
    • Although offering to pay for subsequent dental treatment can circumvent a possible claim, dentists must be careful to define the parameters of such an offer.   

Outcome: A settlement of well under $20,000 was reached, which included an amount for out-of-pocket patient expenses but no lost wages or pain and suffering.

Article by: Ronald Zentz, RPh, DDS, FAGD, CPHRM, CNA Dental Risk Control