Dental Expressions®--From the CNA Claim Files 

In 2020, two Dental Expressions® articles presented claim case studies and risk management recommendations associated with dental “never events.” The case studies involved swallowed or aspirated objects and treatment of the wrong tooth.  In these types of cases, the fact often speaks for itself, known as the legal doctrine of res ipsa loquitur, resulting in claim defense challenges. The following case study describes the successful defense of a lawsuit in which the patient alleged wrongful extraction. 

Claim Case Study
Practitioner: General dentist 
Claimant: Female, aged 32 years
Risk management topics: referrals; patient assessment/diagnosis; safety protocols

Facts:
The patient sought dental treatment on a sporadic basis over many years, often seeking care at hospital emergency rooms, rather than treatment through a dentist. In this scenario, the patient sought care for problems that were primarily related to dental caries.

Two of the teeth requiring treatment included a lower first molar and second molar (teeth 30 and 31). The dentist planned to extract tooth 30, but was unable to complete this part of the treatment following two failed attempts to achieve adequate mandibular anesthesia. The patient was referred to an oral surgeon but subsequently cancelled the procedure.

The patient later sought care with another general dentist for extraction of tooth 30. The dentist determined that tooth 31 (and not 30) was the source of the problem and recommended root canal therapy (RCT). The patient refused the treatment, stating that she had RCT on other teeth that ultimately required extraction when the treatment failed. The patient was referred to another general dentist in the practice for extraction.

The patient advised the third general dentist that she was scheduled for an extraction, and she wanted “this tooth” removed (pointing to tooth 30). The dentist’s custom and practice was to confirm the treatment required by careful review of the referral form or letter, if applicable, and/or the patient’s dental care information records. By performing his own clinical examination, the dentist would confirm that the recommended treatment was both necessary, as well as accurately documented by the referring dentist.

Following his examination and review, the dentist confirmed that tooth 31 required RCT or extraction. This observation was accurately reflected in the referring dentist’s progress note in the patient dental care information record and was supported by radiographic and clinical findings. The dentist recommended that the patient consider RCT for tooth 31, but, once again, the patient refused and insisted upon extraction.

The dentist performed and documented the informed consent process, including discussion of the risks and benefits of extraction and the treatment options. Following the discussion, the patient signed a consent form which identified “tooth 31, the lower right second molar” as the tooth to be extracted. The extraction proved to be challenging, requiring elevation of a small tissue flap with removal of buccal bone and tooth hemi-section. 

The following day, the patient noted the extraction site and believed that the wrong tooth had been extracted. She was experiencing pain and felt a sharp point coming through the gums. The patient sought care at the hospital emergency room. The physician believed that tooth had fractured, and the sharp point was caused by a remaining piece of tooth 31. The physician recommended that the patient return to the treating dentist for evaluation. Instead, the patient sought care from an oral surgeon who removed two small pieces of alveolar bone from the tissue at the extraction site. No tooth remnants were visible clinically or on the radiograph.

One year later, the patient filed a lawsuit, alleging extraction of the wrong tooth and failure to meet the standard of care. The complaint asserted that removal of tooth 31 caused irreversible harm, both due to the lost tooth and because the loss caused problems with other teeth. At the deposition, the patient stated that she would have proceeded with RCT, but this option was not provided to her. The patient also testified that she had constant moderate to severe pain in the jaw as a result of the extraction due to nerve damage incurred during the extraction.

Key Allegations:
Wrong tooth extraction; failure to meet the standard of care

Alleged Injury/Damages:
Loss of first molar tooth; medical/dental expenses; nerve injury; pain and suffering

Analysis:
Proceeding to trial with a wrong tooth extraction case is unusual. Although the majority of claims associated with an allegation of wrong tooth extraction involve a treatment error, it is not always the basis of a claim. In this scenario, following discussion with the defendant dentist and review of clinical records, it was confirmed that the correct tooth was extracted. However, a wrong tooth claim may still be asserted due to one or more of the following:

• Sequential treatment of suspect teeth, when the cause of the pain or other problem is unclear.
• A conflicting opinion of another general dentist, dental specialist, or in some cases, a physician.
• Inadequate informed consent procedures and documentation.
• Other miscommunication between the dentist and patient about the findings or recommended treatment.

For these reasons and others, a wrong tooth claim may result from a patient’s perception of error. Such claims can be successfully defended, but only with complete and accurate dental records.

Key points in this case include:

• The plaintiff’s case relied solely on the patient’s testimony.  A dental expert did not opine for the plaintiff. 
• The defense engaged an expert who, following review of the case records, supported that the standard of care was met.
• The dentist’s custom and practice to confirm the diagnosis and recommended treatment before proceeding to treat helped to support the defense of the claim.
• The treating dentist’s records included:
  • A diagnostic radiograph of the treatment area.
  • The diagnosis and treatment options.
  • Documentation that an informed consent discussion with the patient occurred and that the discussion included the benefits and risks of treatment and alternative treatment options. 
  • A written consent form, signed by the patient identified the tooth to be extracted by tooth number (31) and description (lower right second molar).
  • Post-operative instructions and recommended follow-up care.
• Defense counsel also obtained records from other providers to support the case.

Although the defense may build a strong case, the outcome of a trial is never certain. In a professional liability matter, the jury will be comprised of individuals from all walks of life, who may be more likely to empathize with a patient’s perspective than that of a dentist or other healthcare provider. In addition, understanding one’s own role may be of critical importance to the outcome of a trial. For example, not every dentist would be a strong witness in their own defense.

This case clearly demonstrates the importance of accurate and comprehensive dental records in defending against allegations of negligence. When records are incomplete, or when other factors complicate and weaken the defense position, the knowledge that you did nothing wrong may not be sufficient to win the day. Therefore, consider the importance of counsel advice before proceeding to trial. 

Outcome:
Verdict for the defense.
 

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