By William S. Spiegel and Marc R. Leffler, DDS, DrBicuspid.com contributing writers

December 21, 2015 -- DrBicuspid.com is pleased to present the next column from two lawyers who spend every day defending dentists in litigation and before the licensing board. The purpose of this column is to offer our readers a fresh perspective on common practice and risk management issues from attorneys who litigate these issues in the real world.

This patient, 55 years old when the suit was filed, had been treated by the same general dentist since age 30. The patient presented annually for what the dentist referred to as "recall exams."

At those exams, the dental hygienist performed Cavitron scalings, spot probing (which was not documented), and took bitewing and anterior periapical x-rays, at some, but not all of the appointments, as the office had no specific protocol in this regard. The dentist performed clinical examinations after each cleaning, although he never documented doing so in the chart.

At no time did the patient ever complain about gingival discomfort, excessive bleeding, or discharge from the gums. Over the course of 25 years, the dental treatment performed, in addition to the recall cleanings and evaluations, included fillings, two extractions, one endodontic procedure followed by a post/core/crown, and teeth whitening.

William S. SpiegelMarc R. Leffler, DDS
William S. Spiegel and Marc R. Leffler, DDS, are both partners at the law firm Spiegel Leffler in New York City.

At the final visit, the patient asked the hygienist -- who happened to have been the same hygienist who had cleaned his teeth for the previous 20 years -- why there had been frequent bleeding from his gums when he brushed his teeth and why he sensed that some of his teeth had moved.

The hygienist advised the dentist of the patient's questions, who then requested a full-mouth series of x-rays, which had not been done for 15 years. The films revealed generalized moderate-to-severe horizontal and vertical bone loss, while periodontal probing showed pocket depths of up to 4 mm to 5 mm on the anterior teeth and 6 mm to 10 mm on almost all posterior teeth.

The dentist told the patient that he needed to see a periodontist as soon as possible and gave him the name and contact information for a local periodontist. The periodontist told the patient that he had significant periodontal disease, which would require the extraction of eight teeth and periodontal surgery with grafting for the remaining teeth, but with a guarded prognosis. The patient soon learned that he would have a $15,000 bill for the periodontist and $35,000 more for implants and restorations for the teeth to be extracted, plus an unknown future. Faced with no alternative, he proceeded with the work.

Legal stance

The patient filed suit, claiming that the dentist had deviated from the standard of care by failing to diagnose and monitor his condition by way of examinations and x-rays, failing to appropriately treat, and failing to refer him to a periodontist in a timely manner.

In addition to the costs of the needed dental treatment, some of which was claimed to require replacement in the future, the patient claimed embarrassment over tooth loss and loss of enjoyment of life, including difficulty eating and problems speaking with business associates during the treatment period. We colloquially refer to this type of case as "supervised neglect."

Issues raised

  • X-rays: The plaintiff argued that the haphazard taking of x-rays deprived him of the opportunity for early diagnosis and the improved prognosis that goes along with that. Although there was a gap of 15 years between the full-mouth series, there were bitewings and anterior periapical films taken intermittently over the course of 25 years.

    These did show the progression of bone loss and the dentist testified that he advised the patient of this several times, but that the patient only wanted to treat emergent issues. This was not documented, and the patient denied that any such conversations took place until the last visit.

  • Periodontal exam: Plaintiff's counsel also took the position that spot probing, which the hygienist says was performed, was actually never performed -- because it was not documented -- and that there should have been full-mouth probing and charting done on a regular basis, which again would have led to an earlier diagnosis.

    Although the dentist and his hygienist testified that probing was indeed done "every year or two," there was nothing documenting this. The dentist testified that he doesn't record normal findings, thus there was nothing to note.

  • Failure to refer: The plaintiff's attorney asserted that the defendant dentist was not qualified to manage this patient's periodontal condition and also that the patient should have been referred to a periodontist before the periodontal disease had worsened. General dentists are legally permitted and qualified to manage a patient's periodontal disease, but that does not prevent a plaintiff's attorney from making that argument to a jury.

    The dentist testified that he "had mentioned" to the patient that he ought to see a periodontist and that he had done so many times. The patient denied this. The chart did not note this point.

  • Documentation: As stated above, the patient's chart did not include notes about the patient's periodontal condition or that probings had been done. The chart also did not acknowledge the progression of bone loss and that the patient had been advised this called for treatment and refused, as well as no notes that the patient was ever referred to a periodontist.

Verdict

Plaintiff's counsel was treating this as a "policy limit" case throughout the litigation. After discovery was completed, we moved to dismiss 23 of the 25 years of treatment at issue, arguing that under New York law, the case was only timely filed as to any treatment dating back 2.5 years from the date the suit was filed. Plaintiff's counsel attempted to oppose this argument by asserting a commonly seen doctrine called "continuous treatment." If successful, all 25 years of treatment would be before the jury.

The court ruled that claims founded solely on a theory of "failure to diagnose and treat" could not also be deemed "continuous treatment." Therefore, only two years of treatment were before the jury, but the injuries remained.

Although counsel for the plaintiff reduced his demand by 90%, our client was steadfast in his belief that he had communicated these concerns to the patient whether they were noted or not, and the client refused to settle.

The jury returned a verdict in favor of the dentist.

This was largely a result of presenting the jury with enough evidence to show that the patient was not being honest with them at the trial. This was achieved by exposing multiple inconsistencies between the patient's deposition and trial testimony, and also showing that, although he denied similar consent and informed refusal discussions with other dentists/doctors in his lifetime, their charts actually documented his informed refusals. Thus, a difficult case that should probably have gone in the favor of the patient went for our client because there was ample evidence to suggest that the defendant was indeed being truthful.

Practice tips

  • X-rays: Determinations regarding the frequency and type of x-rays to take are case specific and will vary among practitioners. However, some protocol should be in place for taking a full-mouth series at some regular interval that comports with a reasonable view of current approaches, as documented by appropriate professional sources. If a patient refuses x-rays for any reason, this should be well-documented, and the patient should be asked to sign next to the chart entry documenting the refusal.

    “Even if there are no signs of periodontal disease, it is sound practice to have something noted about the patient's periodontal condition.”
  • Periodontal probing and charting: Even if a patient has no signs of periodontal disease, it is sound practice to have something noted about the patient's periodontal condition -- even a short note that all depths are within normal limits. More helpful to defending a case would be full-mouth periodontal charting at least every couple of years.

    Again, if the patient's periodontium is stable, short notes should suffice, but any patient showing moderate periodontal disease or progressing bone loss should have more extensive documentation, including a referral to a periodontist.

  • Documentation: If an examination is performed by a dentist after a recall cleaning, it should be documented, preferably by the dentist, noting the findings. If probing is done, the pocket depths should be placed into the note.

    If a patient refuses x-rays, treatment, or a referral, that refusal should be noted in the chart, and a signature by the patient to that effect can be very helpful if litigation were to ensue. If a patient makes any complaints, note them; if not, note that there were no complaints. If a referral to a specialist is made, give the patient a written note to that effect, and keep a copy of that in the chart.

  • Informed consent and informed refusal: We see many cases that involve a patient's refusal to act on a referral or to proceed with the recommended course of treatment. Here, just as it is critically important to obtain a patient's informed consent for procedure, it is equally important to obtain a patient's informed refusal.

    The chart should document that the patient was given a referral and that the risks of progressing bone loss were explained. Document the patient's refusal, and do it on any subsequent continuing visits. Ask the patient to sign the chart note as further protection. Even better, you might have a typed informed refusal form that details all of the above and is signed by you and your patient.

  • Liability insurance protection: In cases like this, hygienists are often sued in addition to the dentist, so it is important to check with your carrier to ensure that the hygienist is covered. Also check that you and your practice entity are covered vicariously for the acts and omissions of the hygienist.

Next case: Implant placement with paresthesia

William S. Spiegel, Esq., is a partner at the law firm Spiegel Leffler in New York City. He is a former assistant corporation counsel to the City of New York -- Medical Malpractice Division.

Marc R. Leffler, DDS, Esq., is also a partner at Spiegel Leffler. He received his dental degree from Columbia University, completed a residency in oral and maxillofacial surgery at New York University, and is a diplomate of the American Board of Oral and Maxillofacial Surgery.

Disclaimer: Nothing contained in this column is intended as legal advice. Our practice is focused in the state of New York, and there are variations in rules of practice, evidence, and procedure among the states. This column scratches the surface on many legal issues that could call for a chapter unto themselves.

The comments and observations expressed herein do not necessarily reflect the opinions of DrBicuspid.com, nor should they be construed as an endorsement or admonishment of any particular idea, vendor, or organization.

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Last Updated hh 5/4/2016 8:05:52 AM

5 comments so far ...
12/21/2015 12:52:15 PM
MWDavisDDS
The defendant got REAL lucky, or plaintiff's dental expert was remiss. No full mouth series of x-rays for FIFTEEN YEARS on an adult patient, w/ a history of endo tx & advanced restorative care. No recordings of pocket probing depths. No periodontal diagnosis recorded for all those years. Yet, an exam fee was charged to patient &/or insurance company, w/ a long-standing ongoing history of payments. I would absolutely advise the attorney retaining my services, to expect an action for fraud, above & beyond the malpractice covered by the limits of the defendant's MP carrier. 
 
I'm still not certain the rationale, if the patient is unaware & not advised of their degeneration in periodontal health status, why only the recent years could be questioned for potential liability. The doctor/defendant's knowledge of the long-standing periodontal health or disease of the plaintiff is less important to prove, as they should have known, if they followed standards of care (SoC) w/ proper examination, record keeping & radiographs. In other words, the doctor's ignorance does NOT excuse liability & their obligation meeting SoC. Since a patient lacks the skill & training of the expert (dentist), they have no obligation to be magically aware of damages from periodontal disease. (Note: if the patient was fully informed & declined to take appropriate action, that's a very different matter.)
 
As they say w/ goalies in the NHL, "It's better to lucky than good". 
 
Michael W Davis, DDS
Santa Fe, NM

12/21/2015 4:54:37 PM
LAN
Another example of what is wrong with our legal system. This is an example of medical neglect, and I am sure all this patients treated in this practice received the same level of care. My heart just BROKE for this patient. The dentist and hygienist should be ashamed of themselves and how they can sleep at night is beyond my comprehension.

12/21/2015 7:50:18 PM
Authors Bill/Marc
From the Authors:  In response to the comment made by MW Davis, DDS, the authors wish to explain an issue which may be unique to New York litigation.  In our presented case, we referred to the “continuous treatment” doctrine.  In basic terms, this doctrine permits a plaintiff to go back in time from when the case is filed more than the statutorily allowable 2 ½ years, if and only if there is a continuous course of care by the defendant which addresses the same problem or condition which serves as the basis for the lawsuit.  When this continuous care does exist, the statute of limitations is extended backward for however long that continuous care was going on.  But, New York courts have specifically determined in a number of cases that the failure to treat does not constitute treatment for the purpose of invoking the continuous treatment doctrine.  So, in the presented case, the dentist’s complete failure to treat and properly evaluate the patient’s periodontal condition served as a legal assist to the dentist; in contrast, a dentist who did acknowledge and treat periodontitis over the course of years, but failed to do so properly, will likely be held liable, as there was “inadequate” treatment rather than “no” treatment.  Whether this seems fair or not, it is a proper interpretation of the state of the law; however, dentists should not count on receiving this protection because in the ever-changing litigation world, new cases are decided which may reverse or modify this concept, and even as it exists right now, different judges interpret the application of the continuous treatment doctrine differently.  Although this case demonstrates a favorable interpretation, it is not difficult to see how the result could have gone in the opposite direction.  It should not be considered a take-away point from this case that dentists should totally ignore degenerating periodontal conditions; to the contrary, as we point out, they should document well, treat appropriately, and timely refer in order to best avoid litigation.
 
We appreciate the insightful and thought provoking comments we see following our articles here.  Keep them coming.

12/21/2015 11:55:35 PM
MWDavisDDS
Dear Bill & Marc,
 
Thank you for your timely response. I would definitely contend the "continuous treatment" was one of prolonged supervised benign neglect, w/out the knowledge or consent of the disadvantaged party in the doctor/patient relationship (contract), the patient. Regardless, your team achieved a favorable outcome for your client.
 
Who knows why a judge rules the way they do? The strength in arguments presented in the briefs? They are alumni buddies w/ one side's legal counsel? A desire to make short shrift of pending cases, & move to work on their backlog? I've definitely seen some insightful rulings from the bench, & some which baffle me. 
 
Also in NY State, most MP dental cases initially are reviewed by state dental society peer-review. This is very unique to NY State. The findings of state peer-review become admissible in discovery. In NY, if a dentist declines to participate w/ peer-review, that becomes potential grounds for one's dismissal from the dental society. A refusal to participate also is admissible in discovery.
 
Question: was this case initially heard before a state dental society peer-review panel?
 
Michael W Davis, DDS
Santa Fe, NM 

1/7/2016 8:15:47 AM
MPR
The court's interpretation of "continuous treatment" not being the case here is laughably absurd on its face -- but because the judge felt that the plaintiff wasn't being truthful, that assessment seemingly colored the entire claim, whether for 25 years or 2.5.  This dentist was lucky, so was the RDH.