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

April 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 68-year-old woman who had been edentulous for many years was growing increasingly unhappy with the full dentures she wore on both arches, especially regarding the lower. She presented to a local prosthodontist, who had been out of residency training less than a year.

On the first visit, she completed traditional intake paperwork, including a health history form, which the dentist later discussed verbally with the patient. The patient stated that she had high cholesterol that was controlled by a statin. She denied all other medical conditions in the check-off boxes and during the subsequent discussion, and for the question on the form of "Are there any other medical conditions we should be aware of?" she responded with "cholesterol" but nothing more.

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.

Clinical and radiographic examination that included a panoramic radiograph revealed a very atrophic, edentulous mandible, with approximately 10 mm to 12 mm of bone in the lower anterior region and merely a few millimeters above the inferior alveolar canal posteriorly. After a lengthy consultation, the patient agreed to the dentist's suggestion of placing four implants in the anterior mandible, upon which a snap-on type of overdenture was planned.

The dentist explained that he had placed and restored many implants, so he would be able to provide the entire course of treatment. He discussed the risks, benefits, and alternatives associated with implants, and gave the patient a three-page, detailed consent form to take home, read, and bring back with her when she returned for the surgery.

She returned the following week, having read, understood, and signed the consent form, but the dentist again verbally reiterated its contents. When the patient assured the dentist that she understood what she was getting into, he gave her local anesthesia and uneventfully placed four 8-mm implants into the mandible, two on each side, in the areas of the lower canines and incisors.

The panoramic radiograph showed parallel placement of the implants, all of which were in what appeared to be solid bone on the radiographic image. At the first postoperative visit, the patient had no significant complaints, and the areas appeared to be healing well. But about two weeks later, she returned to the office complaining of new-onset pain in the left canine area. The dentist took an x-ray, which revealed a new shadow, that he thought could represent a fracture. He referred the patient to a local emergency room (ER).

At the ER, a full series of facial radiographs was taken. The patient did, in fact, have a nondisplaced fracture of the mandible, just posterior to the implant in the left canine site, that was communicating with the implant. She was soon taken to the operating room, where the oral surgeons removed that implant and placed plates and screws to fixate the fracture. Significant postsurgical complications, including infections and extended hospital admissions, ensued.

Legal stance

The patient obtained an attorney, who sued the dentist, now our client, for having committed dental malpractice in the placement of the implants so as to cause the mandible to fracture.

The claim, in essence, was that the dentist should not have placed implants in a mandible with such severe atrophy, as it was destined to fracture. The patient-plaintiff also claimed a lack of informed consent, asserting that she would never have done the procedure if she had known that fracture of the jaw was a potential consequence.

Discovery in the litigation

Under our system, defense counsel is entitled to obtain medical and dental records of other providers that might reasonably lead to material information. In reviewing the records of the hospital where the plaintiff was treated for the fracture, we noted that the patient's medical history included "severe osteoporosis history." Therefore, we requested and received -- over strenuous opposition -- from the plaintiff's attorney authorizations for all records relating to the plaintiff's osteoporosis.

As it turns out, the plaintiff had been hospitalized only five months before seeing our client for a spinal fracture. That fracture occurred by the simple opening of a window. During that hospital stay, she was diagnosed with severe osteoporosis, which the records clearly stated was the cause of the spinal fracture.

The expert we had retained believed that the implants had been placed properly by our client, that the decision to have placed them was reasonable, and that the very likely cause of the fracture was the patient's underlying severe osteoporosis, which had not been disclosed to our client.

When we discussed this issue with our client, he said that, had he known of that history, he would never have gone forward surgically without a consultation with and approval of the plaintiff's treating physicians who treated her -- up to that day -- for the osteoporosis.

Deposition of the plaintiff

Depositions are sworn question-and-answer sessions, given under oath, by each party to a lawsuit. At the plaintiff's deposition, we asked her about the prior back fracture and her osteoporosis.

“When asked why she did not disclose to our client that she had osteoporosis, she responded simply with ‘He didn't ask.’”

She fully acknowledged those events and also acknowledged that she had still been under care for that at the time she saw our client. She further admitted that her orthopedic doctors had told her that the osteoporosis was the cause of the fracture and also told her that she was at great risk for fracturing other bones, so she needed to exercise care.

Also at the deposition, she acknowledged that she had signed the consent form, which set forth -- at three distinct places within -- that jaw fracture was a known risk of implant placement in the lower jaw, but did not read or understand it.

When asked why she did not disclose to our client that she had osteoporosis, she responded simply with "He didn't ask."

Result

The case settled just before jury selection and for what we would consider nuisance value.

Practice tips and risk management

This case emphasizes the importance of reviewing a health history with every patient and updating it at reasonable intervals.

We have looked at countless health history forms when evaluating our clients' dental office charts. Admittedly, osteoporosis is not a commonly listed condition. But there are more potential diseases and conditions that affect people than we can count, so it would be literally impossible to list every one of them on a health history intake form.

So, how can dentists prevent a situation like this case presents, and what constitutes a violation of the standard of care in this regard?

While there is no definitive answer, the best we can offer is to make health history questionnaires as comprehensive as is reasonable, reflecting back to the forms used in dental school and residency training programs to see what academic institutions view as reasonable. But regardless of how comprehensive the form is, there will always be conditions of some patients that are not on the form.

What can you do? In the opinion of our expert, having a follow-up conversation with your patient after completion of the health history form is well within the standard of care for dental practice. Patients have responsibilities when seeking care, and it lies with them, just as much as with the dentist, to be fully open, complete, and accurate in their disclosures, because dentists rely on those disclosures.

What we believe also is helpful is a verbal reiteration of that final catch-all question, making it sound as broad as possible and emphasizing to the patient that treatment decisions are often guided by a patient's medical status, so that the dentist provides the patient every opportunity to disclose what there is to disclose.

"The tooth is connected to the body" is more than just a cute phrase.

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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