Dental Expressions® -- From the CNA Claim Files  
 
The legal theory of vicarious liability holds employers responsible for the acts and omissions of their employees. However, vicarious liability is not limited to liability resulting from the actions of employees. It also may arise from the actions of anyone with whom the business owner or corporation has, or appears to have, a supervisory relationship, known as apparent (ostensible) agency. This issue of Dental Expressions® presents a case example involving an independent contractor endodontist.
 
Claim Case Study
Practitioners: General dentist—practice owner (insured PLLC); endodontist—independent contractor for the insured dental practice 
Claimant: Female, aged 42 years, smoker
Risk management topics: business practices; referrals and referral communication; disclosure of adverse events; documentation
 
Facts:
The patient had been treating with the general dentist/practice owner for several years. However, she sought care on a sporadic basis, and, in most cases, her visits were scheduled to address a complaint rather than for preventive care. After missing two scheduled appointments for dental prophylaxis and a periodic examination, it had been about 18 months since the patient’s last visit.
 
The patient came to the office complaining of pain with a lower tooth and requested to be seen that day. After reviewing and updating the medical history and listening to the patient’s concerns, the dentist proceeded to examine the patient. This led to a diagnosis of recurrent decay on tooth 28. Further assessment and a periapical radiograph of the area indicated probable pulp pathology and the need for root canal therapy (RCT) on tooth 28.
 
After a brief discussion of treatment options, the patient stated that she preferred to have RCT and save tooth 28, rather than extraction. Since the dentist no longer performed RCT, he recommended the patient see an endodontist. The dentist advised that he could refer the patient to a specialist at another location or, if she preferred, the patient could return to the office the following morning. For the convenience of his patients, the dentist arranged for an endodontist to deliver endodontic services in his office. The patient agreed and returned the following day. 
 
After the endodontist confirmed the diagnosis, discussed treatment options, and explained the benefits and risks of RCT, the patient agreed to proceed. The RCT was challenging, due to partial calcification and dilaceration of the root tip. Unfortunately, a small segment of a file separated while instrumenting the apical section of the canal. The endodontist advised the patient and recommended that the RCT be completed, judging the risks of trying to remove the segment to be greater than leaving it in place.
 
Although the patient was to return for a crown restoration and other restorative work, she missed the scheduled visit with the general dentist. Approximately two years elapsed with several rescheduled visits and cancellations. At this point, the tooth became symptomatic, and the patient decided to seek a second opinion. The new endodontist advised the patient that a piece of an endodontic file was retained in the root canal. Her symptoms indicated the presence of infection and the delay in restorative care had resulted in the loss of tooth structure. The endodontist advised that extraction would be the best course of action. 
 
Extraction of tooth 28 proved to be difficult. Fracture of the tooth required flap elevation and bone removal. After deciding to begin treatment at a new dental office for an implant and other treatment to restore the full lower arch, the patient experienced further problems at the tooth 28 position. An implant was placed and failed to integrate, as did the second implant. Related procedures included guided tissue regeneration and bone grafting. With an unknown prognosis for a third implant, and facing many other restorative expenses, the patient sought legal counsel and filed suit against the first endodontist and the general dental practice.  
 
Key Allegations:
Endodontist—failure to meet the standard of care for endodontics, inadequate consent, and failure to disclose.
Dental practice—vicarious liability, failure to disclose and properly monitor. 
 
Alleged Injury/Damages:
Loss of tooth; current medical/dental expenses; future implant and restorative care expenses; pain and suffering; with a demand slightly more than 6 figures.  
 
Analysis:
The lawsuit alleged that the endodontist did not obtain informed consent. Although the patient (plaintiff) received a copy of a consent form, it was not signed, and she did not recall discussion about the possibility of a broken file. The patient also denied that the endodontist disclosed the broken file when it occurred during the RCT procedure.
 
The endodontist stated that his custom and practice was to always disclose when a file separates, unless it is immediately retrieved and does not affect the treatment plan or prognosis. However, the patient’s healthcare record did not document a discussion about the separated file. The patient was scheduled for a follow-up visit with the practice owner (later cancelled), but the record did not include a referral report or a detailed treatment summary to the practice owner. Therefore, the general dentist was not aware of the retained file until the lawsuit was filed.
 
The insured dental practice was named in the lawsuit under the theory of vicarious liability, but other allegations also were asserted. As a patient of record, the lawsuit alleged that the practice failed to properly follow-up and monitor the patient’s oral health and did not disclose the separated file. The practice owner strongly refuted these allegations. Moreover, he had clearly explained to the patient that the endodontist was an independent contractor who established his own schedule in the office. The general dentist’s defense attorney agreed that, based upon the documented discussion and information provided to the patient (practice brochure), a reasonable person would conclude that no supervisory or employee relationship with the endodontist existed.  
 
The endodontist believed that the standard of care was met for the RCT. Leaving the separated file was the right decision in this case, even though it eventually resulted in RCT failure and loss of tooth 28. However, the endodontist understood that documentation oversights would be challenging to overcome if the case proceeded to trial, and he, therefore, consented to settle the case.
 
Both the plaintiff’s counsel and the endodontist’s defense attorney believed that the practice owner should participate in the settlement. However, the owner refused to consent. Existing documentation and the fact that the patient cancelled several appointments for follow-up care supported this position. Had the patient returned as recommended, the practice owner may have been able to intervene, perhaps preventing the loss of tooth 28.
 
After several months, the case proceeded to mediation. Defense counsel for the practice owner communicated to the mediator that his client would not contribute to a settlement. The case did not settle at mediation, but, just before depositions were to be taken, the endodontist agreed to settle the case for the full amount proposed at mediation.
 
Key points in this case include:

• The practice owner’s business practices, patient communication, and supporting documentation regarding the nature of the relationship with the endodontist.
• The patient’s failure to comply with recommended follow-up care and her history of canceled and rescheduled appointments.
• Inadequate documentation by the endodontist to 1) support his custom and practice regarding disclosure of an adverse event and 2) advise the referring dentist about the treatment, any complications or concerns, and the prognosis.

 
This case study describes an example of potential vicarious liability, underscoring the importance of both doctor-patient communication and documentation of the discussions. The case also identifies inadequate referral communications. Both referring and referral practitioners are obligated to ensure that communications are accurate and comprehensive in order to support patient safety and quality of care. Although the endodontist was responsible for the RCT and communications associated with the separated file, the referring general dentist may have helped to prevent the negative outcome by establishing expectations with the endodontist in advance regarding post-treatment communication.
 
Outcome:
The case settled for $75,000 with no participation by the general dentist practice owner.
 
Article by: Ronald Zentz, RPh, DDS, FAGD, CPHRM
CNA Dental Risk Control
 
 
 
^{Disclaimers
These are illustrations of actual claims that were managed by the CNA insurance companies.  However, every claim arises out of its own unique set of facts which must be considered within the context of applicable state and federal laws and regulations, as well as the specific terms, conditions and exclusions of each insurance policy, their forms, and optional coverages. The information contained herein is not intended to establish any standard of care, serve as professional advice or address the circumstances of any specific entity. These statements do not constitute a risk management directive from CNA. No organization or individual should act upon this information without appropriate professional advice, including advice of legal counsel, given after a thorough examination of the individual situation, encompassing a review of relevant facts, laws and regulations. CNA assumes no responsibility for the consequences of the use or nonuse of this information.
 
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Risk Management services are provided by Dentist’s Advantage and the NSDP to assist the insured in fulfilling his or her responsibilities for the control of potential loss-producing situations involving their dental operations. The information contained in this document is not intended as legal advice. Laws are under constant review by courts and the states and are different in each jurisdiction. For legal advice relating to any subject addressed in this document, dentists are advised to seek the services of a local personal attorney. The information is provided "AS IS" without warranty of any kind and Dentist’s Advantage and NSDP expressly disclaims all warranties and conditions with regard to any information contained, including all implied warranties of merchantability and fitness for a particular purpose. Dentist’s Advantage and NSDP assume no liability of any kind for information and data contained or for any legal course of action you may take or diagnosis or treatment made in reliance thereon.}