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.
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.
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."
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.
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.
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.
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.
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.
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.