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

December 4, 2017 -- 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.

A 45-year-old law-enforcement officer presented to an oral surgeon after a referral from his general dentist. The dentist had found a white lesion adjacent to and partially within the site of a recent lower incisor extraction.

The oral surgeon shared the general dentist's concern that the lesion appeared suspicious, so he debrided the extraction site and sent all of the removed tissue for histopathology. A week later, the biopsy result was available when the patient returned; it was read by an oral pathologist as verrucous hyperplasia with mild epithelial dysplasia.

The diagnosis was given to the patient, along with a referral to a head and neck surgeon, whose name and phone number were written on the oral surgeon's letterhead. The oral surgeon did not keep a copy of the referral note, and the chart note for that date stated that the patient had been given the diagnosis and "told to see an ENT," an ear, nose, and throat specialist.

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

The patient returned to the oral surgeon two months later, as instructed, and acknowledged that he had not yet seen the head and neck surgeon, but the oral surgeon did not write this fact in the patient's chart.

That same day, the oral surgeon took an image of the patient's lesion using a cone-beam CT system in his office. He noted that the lesion was "negative for infiltrating tumor." However, he did not document anything else other than a requested return visit in three months.

Again, the patient returned for that follow-up, at which time the oral surgeon found the extraction site completely filled in, but he also found two distinct white lesions in the same area. Both were excisionally biopsied.

The reports of both biopsies were exactly the same as the earlier report, which the patient was told about, and this time the oral surgeon noted in the record, the patient "has not yet seen head and neck surgeon, but encouraged to." The patient was also asked to return to the oral surgeon for a six-month follow-up.

The patient did not return until two years later, despite the fact that the oral surgeon sent him a letter when he missed the six-month visit. The patient acknowledged that he never saw the head and neck surgeon in the interim period.

By this point, the anterior mandible was significantly enlarged, with purulent exudate noted in the region. The oral surgeon took a panoramic radiograph, which showed bony destruction of the anterior mandible. Based on the patient's prior noncompliance, the oral surgeon called the head and neck surgeon with the patient present and set up an appointment, to which the patient did go.

The head and neck surgeon biopsied the area and sent the patient for a CT scan; both confirmed the presence of an invasive squamous cell carcinoma. Within short order, the head and neck surgeon admitted the patient to the hospital and took him to the operating room, where he performed an anterior mandibular resection, a neck dissection, and placement of a tracheostomy. After the surgery, he placed the patient in the hands of an oncologist, who began a regimen of radiation therapy.

The tumor was given a stage 3 TNM (tumor, lymph nodes, and presence of metastasis) classification, so his survival prognosis was reduced, his quality of life would be greatly affected, and he could no longer work as he previously did in law enforcement.

Legal stance

The patient filed suit against the general dentist and the oral surgeon (our client), claiming that they failed to diagnose and treat the patient's oral squamous cell carcinoma in a timely manner. The suit asserted that an earlier diagnosis would have resulted in far less invasive treatment and would have allowed for a better prognosis and resumption of normal life activities.

Issues raised

“It is a regular event for us to see dental records that are poorly documented in a variety of ways.”
  • Statute of limitations: The statute of limitations for medical, dental, and podiatric malpractice in New York state is 2.5 years. Thus, barring some very specific exceptions, the patient has 2.5 years from the date of the alleged malpractice in which to commence an action.

    At the time of the filing of the suit in this case, only the one treatment following the two-year hiatus was within the statute of limitations period, with all previous treatment being outside of it. The patient's attorney claimed and sought an extension of the statute of limitations through the "continuous treatment doctrine." The significance of this was immense, because the treatment within the statutory period was inarguably prompt and non-negligent, so no case would lie within the time frame unless the court permitted the continuous treatment doctrine to come into play and permit a claim relating to the initial phase of treatment.
  • Dental chart entries: Our client's chart entries were brief and lacked detail, and he did not maintain a copy of his initial referral letter to the head and neck surgeon. If the court would allow the continuous treatment doctrine to apply, then the jury would evaluate the quality of the oral surgeon's chart entries, especially with regard to the referral on receipt of the first biopsy report, in the face of the plaintiff claiming that no such referral was given to him.

Motion to dismiss: Granted

On behalf of our oral surgeon client, we made an application to the court seeking dismissal of the case by what is known as a motion for summary judgment. In the motion, we argued a concept, which has been supported by New York's appellate courts, that the claimed failures to treat (that is, not timely referring to a head and neck specialist) in the pre-two-year hiatus period cannot also constitute treatment for purposes of seeking the court to accept the entirety of the care period as a continuous course of treatment. In other words, a doctor cannot neglect to treat, while at the same time be treating -- those are self-contradictory.

Fortunately, the court agreed with our approach in this regard by disallowing all claims of negligence beyond the statute of limitations period and only permitting the plaintiff to claim negligence on the sole date within the statute of limitations period, which was the day that the oral surgeon actually made the appointment for the head and neck surgeon, with the plaintiff present.

So, we next had to argue that the sole allowable date for claimed negligence was irrelevant. We did this by pointing out that our client followed more than ideal protocol by literally ensuring that the plaintiff would be seen by the proper specialist in a timely fashion.

Moreover, we demonstrated that, because the plaintiff began his cancer treatment almost immediately following the final treatment date with the oral surgeon, nothing done (or not done) that day could have possibly had any negative effects on the plaintiff. Again, the court agreed with us, and the case was dismissed.

It should also be noted that the case against the referring general dentist was dismissed on statute of limitations grounds.

Practice tips

  • Statute of limitations: We wish to clarify an important concept regarding statute of limitations, which can be misinterpreted from this case discussion. The failure to properly treat a patient -- whether by failing to detect dental decay, failing to address worsening periodontal disease, or failing to diagnose and treat a lytic lesion of the jaws, etc. -- is a basis for a valid dental malpractice claim, so long as the failure(s) took place within the statute-of-limitations period.

    It is only when a failure occurred longer ago in time than the statute of limitations would allow that a court can dismiss the claim for legal untimeliness. But, dentists should be aware that many legal concepts, including the doctrine of a continuous course of treatment, are subject to interpretation by the court, so there is no way to predict how a court will decide or guarantee that certain treatment dates will be taken out of the case.

    It is also important to keep in mind that outside of New York state, many states have a "discovery" rule that means the clock on the statute of limitations does not begin until the alleged malpractice is discovered or should reasonably have been discovered.
  • Chart entries: It is a regular event for us to see dental records that are poorly documented in a variety of ways: lacking detail, written after the fact, illegibly written, mixed up as between patients, lacking the basis for doing or not doing a procedure, and so on. It is true that electronic records do help in ridding some of these issues, but they also carry other problems that we look forward to addressing in another article.

    As a general rule, dental chart entries should be made so as to permit another dentist to look at the entry and know exactly what was done, why it was done, what discussions were had with the patient, unique concerns or complications, and how that treatment fits into the overall plan for the patient.

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. Some of the facts and other case information have been changed to protect the privacy of actual parties.

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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