Procedures that are associated with the highest average paid indemnity for dental professional liability claims include surgical and/or simple extractions, dental implant placement and root canal therapy. In order to help alleviate a patient’s anxiety and improve the comfort level during surgery, dentists may administer medications in addition to local anesthetic drugs, or request the services of an anesthesia provider to do so. Although administering sedation medications may benefit an individual patient, the potential for increased risk exposure is present.  Therefore, dentists must remain focused on patient safety and meet the standard of care to prevent adverse events, while also being prepared to manage an adverse event, if needed. 
 
Claim Case Study
Practitioner: General dentist  
Claimant: Male, aged 55 years, history of hypertension (controlled) and substance use
 
Risk management topics: patient assessment, selection and monitoring, evidence-based clinical guidelines, regulatory compliance and documentation
 
Facts
The patient sought care from a new general dentist after years of postponing dental treatment. As a younger man, the patient struggled with substance use and addiction. With treatment he overcame addiction, but his oral and general health remained compromised, primarily due to recurrent dental decay and physical inactivity.
 
On examination, the patient’s periodontal condition involved general mild attachment loss with no signs of active disease. The dentist noted multiple posterior restorations, two of which were failing due to recurrent decay. Although the patient was asymptomatic, the two teeth were non-restorable and the dentist recommended extraction with placement of dental implants. The quadrant would be restored with an implant supported crown and three unit fixed bridge.
 
The patient revealed a history of anxiety related to dental and medical procedures. His decision to find a new dentist was, in part, based upon a desire for sedation dentistry, an option described on the dentist’s website. After discussing and agreeing to the treatment plan, the dentist obtained informed consent and scheduled the patient for surgery under moderate sedation.
 
Anesthesia administration and surgery proceeded without incident through completion of the two extractions. However, during the process of site preparation and placement of dental implants, the patient’s oxygen saturation level fell rapidly. The dentist observed that respirations had stopped, and he immediately began resuscitation efforts. Although a dental team member contacted emergency medical services (EMS), the contact did not occur until several minutes after the dentist discontinued the surgery to begin resuscitation. EMS personnel took over treatment and transported the patient to the hospital emergency department. Unfortunately, he expired shortly after arrival.  
 
Key Allegations: Negligent care including: wrongful death; failure to refer (for sedation); failure to properly monitor the patient during sedation; failure to recognize and respond to a medical emergency
 
Alleged Injury/Damages: Medical expenses, funeral and burial costs, lost income and loss of consortium. The plaintiff’s demand exceeded $1.5 million.  
 
Analysis
The insured was an experienced mid-career dentist with more than 5 years of experience providing in-office sedation. The defense experts supported the dental treatment provided and generally supported the sedation services. However, the sedation/anesthesia expert expressed concern that although the dentist’s written procedure generally followed the state requirements for patient monitoring, documentation in the dental healthcare information record did not. In fact, an associated investigation by the State Board of Dentistry resulted in suspension of the dentist’s anesthesia permit due to inadequate documentation of patient monitoring.
 
Although not diagnosed, the plaintiff’s expert suggested that the patient may have suffered from obstructive sleep apnea, given his height and weight and the facts of the case. It was not the insured’s custom and practice to request that prospective sedation patients complete a sleep apnea screening questionnaire, and this screening also was not required by the state in which the incident occurred. However, sleep apnea presents risks for patients undergoing sedation and general anesthesia, and many patients are not formally diagnosed. Screening for the condition may benefit the patient and provider.
 
American Dental Association (ADA) Guidelines for the Use of Sedation and General Anesthesia by Dentists (2016) - - current at the time of the incident - - recommended considering assessment of Body Mass Index (BMI) as part of the patient workup for moderate sedation. Individuals with elevated BMI may be at increased risk for airway associated morbidity. The patient’s height and weight at the time of the incident indicated a BMI of 31, placing him in the “obese” category. The plaintiff’s expert opined that a prudent practitioner would have investigated further, given the potential for the airway to be compromised during moderate sedation.
 
The plaintiff’s expert also asserted that the insured breached the standard of care by not monitoring end tidal carbon dioxide (CO₂). This protocol was not required by the state at the time of the incident, but the ADA Guidelines state that dentists “must monitor” end-tidal CO₂ unless this is “precluded or invalidated by the nature of the patient, procedure or equipment”.  
 
Furthermore, the practice could not produce staff training records for the management of medical emergencies. The office had not conducted a mock emergency drill to practice emergency procedures for several years. Although the office procedure that was established prior to the incident required contacting EMS in emergency situations such as this, notification was delayed in the confusion of the moment. Staff members were engaged with assisting the dentist, but the procedure was unclear on the responsibility to notify EMS.   
 
Outcome
Defense counsel and the claim professional expressed concern to the defendant dentist about the dental board decision (anesthesia permit suspension and monetary penalty), patient assessment, case selection and the office emergency response. These and other challenges led the defense team to recommend settlement. The dentist also did not wish to try this case and all agreed to seek settlement. After failed direct negotiations, the case was ultimately settled at mediation. The total incurred cost (indemnity plus claim defense expenses) totaled more than $1.2 million.
 
This case represents an example of the risks that may be involved with in-office sedation or general anesthesia.  Offering sedation services provides certain benefits.  Nevertheless, inherent risks exist even for patients that do not present with significant diagnosed medical conditions. Patient assessment and medical consultation, when appropriate, are important considerations before deciding to treat, engage with an anesthesia specialist, or refer.
 
Understanding and complying with state regulations for informed consent, patient assessment, monitoring and other requirements are mandatory in order to prevent the imposition of disciplinary action against a dentist’s license. As in this case scenario, state requirements may not include the most recent evidence-based guidance and recommendations. It may take years to modify a statute or regulation. Therefore, one cannot rely upon the standard of care being met solely by complying with statutes and regulations. Dentists must remain updated on evidence-based guidelines and research published by the American Dental Association and other reputable sources.
 
Article by: Ronald Zentz, RPh, DDS, FAGD, CPHRM
CNA Dental Risk Control
 
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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.   This material is for illustrative purposes and is not intended to constitute a contract.  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.}