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

March 14, 2018 -- 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 60-year-old man presented to a large group practice with many missing teeth. He had been wearing removable partial dentures for years and was becoming more dissatisfied with their fit and function.

After an examination that included a clinical assessment and a panoramic radiograph, the examining general dentist suggested the concept of placing implants at the edentulous sites, to be followed by restorations. The patient expressed interest, so he was referred to a periodontist -- our eventual client -- within the practice for evaluation.

The same day, the periodontist performed her own examination and concluded that the patient was a good implant candidate. Although the specifics of the discussion were in dispute, there was a discussion about implants, where they would be placed, and that the implants would later be restored by a restorative dentist following a healing period.

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 agreed to go forward, but he wanted only one quadrant handled initially, essentially as a test run. The patient would return the next week to have three implants inserted in his upper left quadrant.

At that next visit, the patient signed a very detailed consent form following what our client claimed was a "give-and-take" regarding risks, benefits, and alternatives. The patient, on the other hand, would later testify at deposition that no discussion took place at all, and that he was required to sign the consent form without reading it because he had left his eyeglasses at home.

Using local anesthesia on the patient, the periodontist inserted three upper left endosseous implants. Our client prescribed antibiotics, an antibacterial mouthrinse, and pain medication. No postplacement x-rays were taken that day for unrecalled reasons.

On the first postoperative visit, the patient complained of sinusitis-like symptoms (pain, stuffiness, and tenderness to percussion over the maxillary sinus area), so a panoramic radiograph was taken. The x-ray showed that one of the three implants projected about 2 mm superiorly beyond the bony floor of the sinus, but it could not be determined whether it pierced through the Schneiderian membrane so as to actually enter the sinus cavity.

On seeing the x-ray, the periodontist offered the patient the options of removing that implant, doing an exploratory procedure to possibly place a bone graft near the apical end of the implant, or going to an ear, nose, and throat (ENT) physician for evaluation and possibly treatment. The patient chose to go to the ENT physician and never returned to our client.

The ENT physician conducted various tests (clinically, microbiologically, and radiographically) but was unable to find signs of infection or sinus disease. The patient went to another dentist, who restored all the implants in that quadrant and also placed implants in the other quadrants, later restoring them.

Legal stance

The patient filed suit against our client, claiming pain, swelling, infection, and mental anguish, as well as asserting that the implant in question required surgical removal, placement of grafts, and replacement of the implant, with subsequent dental restoration. The complaint alleged a lack of informed consent and malpractice in placing the implant that projected above the floor of the maxillary sinus.

Issues raised

  • Informed consent: As in many of our cases, the plaintiff and defendant frequently disagree as to what was discussed between them before the start of the procedure. However, here, there was a signed, dated, and witnessed consent form, which thoroughly set forth the specifics of the procedure, the risks involved (including all of those which were claimed as injuries), and the available alternatives. Because the plaintiff raised the issue that he signed the form without having his eyeglasses with him, discovery rules permitted us to obtain all of his eye exam records for a five-year period. A routine examination performed only four months after the form was signed documented his vision to be 20/20, without corrective lenses.
  • The adequacy of the preplacement radiographic workup: We are hearing more and more from our experts that cone-beam CT (CBCT) studies are becoming the standard of care before implant placement. However, there is plenty of disagreement on this subject, with many in the field believing that panoramic films are more than satisfactory, so long as the dentist is aware of the magnification created by the equipment used.
  • Implant projection into the maxillary sinus: Whether the implant projected above only the bony sinus floor or through the membrane was a significant issue. The plaintiff's expert held the view that, if the implant pierced the membrane and actually sat with its tip in the sinus cavity, the placement procedure which put it there was negligent because it then had the potential to cause sinus problems, but if the implant went past the bony floor but not through the membrane, that placement was acceptable. Our expert saw this as a distinction without a difference: In situations like this, where the projection is up to approximately 4 mm, there is no clinical difference in result (either success of the implant or harmful side effects), regardless of whether the projection is beyond the membrane or not.

Summary judgment motion practice

This procedure, discussed in previous case reports, seeks to have the entire case, or portions of it, dismissed by the judge in advance of a jury trial. The standard employed is whether there exist legitimate questions of fact for a jury to decide. If there are not, then a court may choose to decide certain issues, taking them out of the hands of jurors.

Here, we recognized that there can be and are true differences of expert opinion with regard to the issue of an implant projecting into the maxillary sinus, so we opted against raising this in motion practice, to maintain our credibility with the court.

However, we looked at the informed consent issue differently, and we sought to have that aspect of the case dismissed before trial, based on the reasons outlined above. The court rejected the plaintiff's argument in opposition regarding his inability to read the form without eyeglasses, because of the nearly contemporaneous eye exam that showed his vision to be within normal limits.

Additionally, because a claim of lack of informed consent will only stand if it is proved that a fully informed patient in the plaintiff's position would not have gone forward with the procedure if fully informed, the plaintiff's having gone forward, with his subsequent dentist, with essentially the same procedure, demonstrated that at least this now-informed patient went ahead, despite having suffered claimed injuries in the past. The claim for lack of informed consent was dismissed.

Trial: Verdict for dentist

The only issues left open for the jury were whether our client's implant placement was negligent due to inadequate planning, improper surgical technique, or both and whether the implant placement was negligently performed and if that was the causal factor for the claimed injuries.

“Lay jurors are often swayed by what they see, rather than what they hear from expert testimony, increasingly so in this era of visualization.”

The plaintiff's expert showed and explained a panoramic radiograph of the plaintiff's mouth following the completion of treatment by the subsequent dentist. On that film, which was apparently quite powerful for the jury, all the other implants were located fully encased in bone, but the implant at issue stood alone as appearing to be where it should not be. Despite the fact that our expert explained that there was much science to support the concept that implants that project even through the Schneiderian membrane heal uneventfully and function well over time, much as the implant in question here did, the jury found that the placement of that implant was negligently performed.

The jury was then asked to consider whether the negligent placement was the cause of injury. Here, the jurors rejected that it caused any injury for two reasons:

  • The ENT physician found no infection or sinusitis, so we were able to successfully paint the picture that the plaintiff may have been exaggerating his symptoms.
  • The fact that the subject implant remained in the mouth with a functioning crown on it, nearly five years after placement, meant that it did not require the surgical removal of the implant, graft placement, replacement of the implant, and placement of a new restoration.

So, the negligence was found to have caused no harm to the plaintiff. This was a verdict in favor of our client.

Practice tips

  • Informed consent: There is no getting around the fact that a signed, dated, and witnessed consent form is a strong tool in supporting the defense of a claim of lack of informed consent. Although our state, New York, does not require a written form, the importance of it to judges and juries bears out as paramount.
  • Differences between lay and professional audiences: Dentists conduct their practices, and properly so, based on science. So, for example, if research shows that it is acceptable for the tips of implants to project into maxillary sinuses a few millimeters, that is routinely incorporated into practice. But lay jurors are often swayed by what they see, rather than what they hear from expert testimony, increasingly so in this era of visualization. In this case, one implant out of 10 looked to be misplaced, even though the science says that is acceptable. Thus, when dentists look at a case in which they are sued and say to themselves that what they have done is perfectly fine, they also need to consider how an untrained group of jurors may see it otherwise, especially when faced with opposing expert opinions.
  • Radiographic workups for implants: We do not comment on whether using a periapical or panoramic radiograph or a CBCT scan in a particular clinical setting is appropriate, proper, or necessary. What we do advocate for is that the dentist should choose the option based upon well-reasoned principles that dentist feels comfortable defending in court. When a patient refuses a particular diagnostic test or a suggested treatment, the dentist has the last word in deciding whether to abide by the patient's wishes or to opt against performing the treatment. That should never be forgotten.

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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