A 23-year-old woman presented to the defendant general dentist with complaints of pain and swelling at tooth No. 17 on and off for several months. On clinical and radiographic examination, it was determined that the tooth was partially impacted. The patient was advised that she could have this tooth and all of her third molars extracted. Alternatively, she could wait and see if the pain progressed.
William S. Spiegel and Marc R. Leffler, DDS, are both partners at the law firm Spiegel Leffler in New York City.
The patient opted to have all four wisdom teeth extracted. She was given the option of going to an oral surgeon where she could have IV sedation, but she declined.
The patient returned one week later for the scheduled extraction of Nos. 16 and 17. After extracting No. 16, the dentist used a mandibular block injection to numb the lower left. He then proceeded to incise a layer of tissue covering a portion of the crown of No. 17. This exposed a thin layer of eggshell-like bone over a piece of the crown, and this bone was "chipped" away with an elevator.
The dentist then used a high-speed handpiece to remove some bone on the buccal side of the tooth. He was then able to elevate the tooth out of the socket without difficulty. Sectioning was not necessary. No sutures were needed, and the procedure concluded without any complications noted. The patient was given postoperative instructions and prescriptions for Motrin and amoxicillin.
The patient telephoned the following day complaining of numbness and altered taste on the left side of her tongue. She was brought back into the office and advised that this would resolve over days or weeks, but that if did not, she would have to see an oral surgeon. At two weeks post-op with no improvement, the patient was referred to an oral surgeon who determined that the left lingual nerve had been transected. At four months postextraction, microsurgical repair of the left lingual nerve was undertaken by the oral surgeon and over the following months, only moderate improvement was reported.
The patient filed suit, claiming lack of informed consent and that the dentist deviated from the standard of care by causing a complete transection of the lingual nerve. The plaintiff claimed pain and suffering and loss of enjoyment of life for another 50 years. Leading into the trial, her attorneys were seeking the full $1 million policy to settle the case. The defendant refused to settle.
Verdict: For the dentist
This case could easily have gone in favor of the plaintiff, but we believe, as is often the case at trial, that the jury members made their decision based on their emotional reaction to the parties and their experts. The jury believed that discussions covering alternatives and risks took place, so they rejected the plaintiff's testimony to the contrary.
Most important, the jury had to accept that the lingual nerve can be transected in the absence of negligence. This is not always easy to convey to a lay jury, which is why the experts were so important to the case. Both were oral surgeons, but the plaintiff's expert was caught embellishing the injuries during cross examination, and this may have caused the jury to lend less credence to his opinions.
- Informed consent: Have the patient sign a written consent, and make sure it adequately covers all possible risks in plain language that a patient can understand. At a minimum, discuss alternatives and risks, and note that you did so in your chart.
- Charting: Document that the patient was given referral options and declined. Make a short note of your appropriate surgical technique.
- X-rays: Take sufficient x-rays so that plaintiff's counsel will have one less avenue of attack. If possible, especially with a lower molar, take a panoramic x-ray. At a minimum, have an x-ray of the entire tooth, and for a lower extraction, be aware of the proximity of the inferior alveolar nerve canal to the apices of the roots.
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.
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