In the event that you become a defendant in a malpractice action, a comprehensive dental record is your best method of defense. Inadequate and inaccurate records make it very difficult to effectively defend a dentist against a claim or lawsuit, even when treatment meets the standard of care. Although improvements would be possible, this case represents an example of overall good documentation practices, resulting in a defense judgment.
 
Claim Case Study 
Practitioner: General dentist
Claimant: 50-year-old male in good health with an unremarkable medical history.
 
Risk Management Topics: Documentation, radiograph options, informed consent and patient management (nerve injury)

Professional Liability Brief Facts:
The patient treated with the insured general dentist for approximately seven (7) years before the incident. When the patient was first examined in the office, he complained of periodic discomfort with tooth 20 (pre-existing root canal therapy (RCT) and a crown). The dentist recommended monitoring the tooth, since both clinical and radiographic findings were within normal limits.
 
Symptoms of pain and occlusal sensitivity recurred a few months before the incident, and the dentist referred the patient to an endodontist for assessment and possible RCT retreatment. Upon opening the tooth, the endodontist observed a small crack line extending into the root of tooth 20. He advised the patient that retreatment would not be successful and extraction would be necessary. He recommended that the patient speak with his dentist about options to replace tooth 20.
 
After discussing the treatment options with the patient and covering the benefits and risks of each, the dentist suggested that the patient consider replacement of tooth 20 with an implant-supported crown. Teeth 19 and 21 would be acceptable fixed bridge retainers, as these teeth had no existing restorations. Consequently, an implant-supported crown would be a more conservative and preferred approach. The patient agreed to proceed with implant therapy.
 
According to his custom and practice, the dentist took a periapical radiograph of the treatment area, and he also obtained a new panorex image. After reviewing the available information, he decided to select an implant length of 10 mm, which appeared to allow at least 2 to 3 mm of bone between the implant and the mental foramen/mental nerve.
 
The extraction and implant placement were carried out under local anesthesia (mental nerve block). The procedure was completed with no apparent complications. However, the patient contacted the dentist the following day and complained that he still had numbness of the lower left lip and chin. The dentist saw the patient that afternoon and, although he was confident of the implant placement, suggested its removal to err on the side of safety. The patient agreed. After removing the implant, the dentist completed a baseline assessment of the patient’s symptoms and the extent of the numbness/paresthesia. The results of subjective and objective tests were documented, and the dentist scheduled a follow up in one week to re-assess the patient’s condition. He also prescribed a methylprednisolone dose pack and instructed the patient take all of the tablets over the coming days as directed.
 
Although the patient experienced improvements over the next 3 weeks (per the patient’s comments and documented assessments by the dentist), he decided to seek a second opinion with another general dentist about a month after the implant placement. Dentist number two recommended patience and continued observation in this situation. However, he provided the patient with the name of an oral surgeon with nerve injury treatment experience. Upon examination and after obtaining a Cone-beam computed tomography (CBCT) image, the oral surgeon recommended to continue the conservative approach, as surgical exploration was not warranted in his opinion. He also prescribed a second course of methylprednisolone for the patient.
 
The patient did not return to the treating dentist or the two subsequent dentists. About six months after the incident, the treating dentist received a demand letter from the patient’s attorney indicating that a lawsuit would be filed in the near future unless their demand of $250,000 was met.

Key Allegations:
Negligent implant placement; inadequate informed consent; failure to refer for implant therapy 
 
Alleged Injury/Damages:
Permanent nerve injury, related future medical/medication expenses, pain and suffering, mental anguish.

Analysis:
Nerve injury cases can be difficult to defend, even when documentation is acceptable and defense experts opine that the insured dentist met the standard of care. If a dentist is not an effective witness in their own defense and/or if trial will occur in certain plaintiff-friendly venues, pursuing a reasonable settlement with or without mediation may be preferred to prevent a non-favorable judgment.
 
Several factors led to the decision to move to trial in this case.  

• The dentist’s documented implant planning was meticulous and supported by defense experts. Obtaining a CBCT would have improved the defense, but defense experts agreed that this was not a breach of the standard of care. The dentist showed due diligence in planning and executing implant placement.
• The dentist’s custom and practice for informed consent was well-documented in office procedures and other patient records. Part of his consent process involved always including a progress note about the doctor-patient consent discussion. Unfortunately, the written informed consent document was misplaced and could not be located during legal discovery. Although the progress note did not include the full details of the written consent form, the progress note documentation supported that a valid informed consent was obtained.
• The patient’s symptoms had improved by approximately 75% at the time of his deposition, based on an independent clinical assessment. Defense experts agreed that local anesthesia may have caused post-procedure paresthesia. The patient’s improving symptoms could be consistent with either an anesthetic injury or a reversible surgical injury. In either case, experts believed that a full recovery was still possible.
• Finally, the dentist’s quick action to remove the implant and assess the scope of altered sensation when the patient reported numbness were very important to the defense. These activities met the standard of care and allowed for ongoing assessment of the patient’s level of recovery. Even though the dentist did not obtain a new radiograph before removing the implant, the CBCT taken by the oral surgeon that the patient consulted provided supporting evidence. The space remaining after the implant was removed by the insured dentist indicated that the implant had not encroached on the mental nerve.

 
Outcome:
The jury in this case returned a judgment for the defense. With no indemnity payment, the total incurred cost involved claim expenses only, which totaled approximately $115,000 for claim management and all pre-trial and trial-related legal expenses.  
 
Readers may be interested in learning more about professional liability claims associated with nerve injuries and other causes. Access the latest information in the CNA Dental Professional Liability Claim Report on the Dentist’s Advantage website.

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