From the CNA Claim Files
Failure to disclose risk of nerve injury
Nerve injury is a known risk for many dental procedures, including surgical extraction, and an injury may occur even absent a breach of the standard of care. In a dental malpractice lawsuit, plaintiffs may allege that the dentist failed to take adequate precautions to prevent nerve injury during surgical extraction. According to the CNA and Dentist’s Advantage Dental Professional Liability Claim Report: 2nd Edition,
another common situation involving nerve injury claims relates to plaintiffs alleging that the dentist failed to disclose the risk of nerve injury during the informed consent process.
The informed consent discussion represents the first step in managing the patient’s expectations for treatment outcomes. Patients who understand the risks of treatment will be less likely to initiate a malpractice claim if
one of the described risks actually occurs. In addition, documentation of the informed consent process provides the best defense against a patient’s allegation that they were not adequately informed about the proposed treatment, the treatment options available, or the potential for injury. The following case study provides an example of inadequate documentation of the consent process:
A female patient in her mid-20s presented for examination and treatment, which revealed third molars were present with mandibular impactions. Though no problems were reported by the patient, tooth 32 was at risk for pericoronitis. Although the dentist believed that he discussed surgical risks with the patient, this discussion was not documented in the patient record.
During extraction of tooth 32, the surgical burr penetrated the cortical bone in the distal-lingual area, causing soft tissue damage. The patient did not report residual numbness (although present) until a follow-up visit a week later. Evaluation confirmed loss of sensation to the tongue, which remained unchanged nearly one month later, after which the patient was referred to a specialist for an assessment.
The lingual nerve surfed severe damage and the recommended micro-surgical repair occurred less than three months after extraction. Though the procedure provided partial relief, the patient alleged permanent nerve injury. In addition to this injury, the patient sued the defendant dentist for lost wages and defense costs.
Experts opined that without documentation to support that the dentist discussed surgical risks and alternatives to treatment with the patient prior to the procedure, there would be a low likelihood of a defense verdict should the case to go a jury trial. The claims closed with total incurred expense and defense costs in the high six figures.
For further risk management information on nerve injuries, consult the CNA and Dentist’s Advantage Risk Control Spotlight: Nerve Injury
. For more information on informed consent and other risk control concepts, refer to the CNA and Dentist’s Advantage Dental Professional Liability Risk Management Manual
© Dentist’s Advantage, 2021 © The National Society of Dental Practitioners, 2021
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.
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