As in the practice of all healthcare, the practice of dentistry is imperfect science. Even when exercising all due care, complications do occur, and not always when expected. This reality is why the informed consent process is so important, both from the standpoint of patient expectations and legal defensibility. This interesting case from the Southwest illustrates this point.
Dr. S, a new-to-practice dentist, saw the patient, a 47-year old-female, on an emergency basis because of pain at tooth 18. The patient was a long-term patient of the large practice Dr. S had recently joined. After a complete examination, Dr. S concluded that the patient needed root canal therapy so it was recommended to the patient. Since root canal therapy represented the best chance to retain the tooth, the patient agreed and a comprehensive informed consent process was conducted, including a discussion of the anticipated benefits, risks, and alternatives to the root canal therapy. The patient signed the appropriate consent form, and treatment was commenced.
The procedure required treating three canals. As Dr. S was treating the mesiobuccal (MB) canal, he encountered both a significant curvature and a constriction. As Dr. S attempted to navigate these obstructions, his number 15 file separated about midway to the apex. As he could progress no further, Dr. S obturated the canal as far as possible and also obturated the other two canals to their apices.
Following the procedure, Dr. S explained what had occurred to the patient. He explained that the treatment may be sufficient, but if not, then a referral to a specialist might be necessary. Dr. S discharged the patient with an antibiotic because of the incomplete treatment of the MB canal, and he advised her to contact the practice if she had any further discomfort.
At her 14-day follow-up appointment, the patient was still symptomatic. In consultation with his supervising dentist, Dr. S concluded that it would be best to refer the patient to Dr. Y, a local endodontist, for consultation and possible treatment.
When the patient consulted with the local endodontist, Dr. Y felt she could possibly bypass the separated file and complete the procedure. Dr. Y also conducted a thorough informed consent process before commencing treatment. Unfortunately, in attempting to bypass the file, Dr. Y perforated the MB root (a recognized risk of the procedure), requiring the termination of the procedure. Dr. Y then discussed this new development with the patient and offered the option of extraction or referral to an oral and maxillofacial surgeon (OMS) for an apicoectomy.
The patient was still interested in preserving the tooth, so she opted for the referral. A local OMS saw the patient and performed a successful apicoectomy. He followed the patient for a period after the procedure until she was symptom free. The patient had no further difficulties with the affected tooth.
Sometime later, the patient discussed the case with a family member who was a dental professional. After hearing about the case, the family member opined that “something must have been done wrong here.” After the family member encouraged the patient, she consulted an attorney to bring a malpractice action against Dr. S and Dr. Y (both MedPro-insured dentists).
After evaluating the case, the defense team concluded that both doctors had performed within the standard of care and properly advised the patient of the inherent risks involved in root canal therapy and the subsequent treatment. With the doctors’ concurrence, no settlement was offered and the case proceeded to trial. The jury returned a defense verdict in favor of both doctors.
Risk Management Considerations
By Theodore Passineau, JD, HRM, RPLU, CPHRM, FASHRM
MedPro’s dental claims division handles approximately 1,000 newly arising claims and lawsuits filed against our insured dentists every year. When a new claim is received, one of the primary factors the claims manager reviews in the initial case evaluation is the actual clinical care that was rendered. Did the doctor perform within the standard of care? That is a good place to start in reviewing this case.
The facts and documentation clearly demonstrate that both Dr. S and Dr. Y performed well within the standard of care. Dr. S had correctly evaluated and diagnosed the patient, recommended an appropriate procedure, and performed it skillfully. The fact that the file separated is not, in itself, an indication of substandard practice; broken files happen to the best practitioners.
Likewise, Dr. Y properly assessed the case and settled on a remedial approach that was appropriate and well within her skill level. When a known potential complication developed (again, in itself, not an indication of substandard practice), Dr. Y recognized the implications and appropriately referred the patient to an OMS. There was, simply, no malpractice in this case.
Even care that is skillfully rendered and beneficial to the patient can still be a basis for a cause of action when it is performed without the knowledgeable agreement of the patient. This is the concept of informed consent. Years ago, practitioners viewed informed consent as just a procedural step done to “keep the lawyers happy.”
It is now understood that, in addition to being a legal requirement, an effective informed consent process makes for a better educated patient who is not only more likely to have realistic expectations for the outcome of his/her treatment, but also more likely to comply with the doctor’s recommendations. In this case, both Dr. S and Dr. Y provided thorough, accurate information to the patient. The patient had no basis for complaining that she did not knowingly agree to her treatment.
When Dr. S saw that things were not going well at the patient’s 14-day appointment, he wisely consulted with his supervising dentist. Especially for the new-to-practice dentist, consultation with a trusted, more experienced colleague is almost always beneficial. Knowing one’s limitations is a powerful risk management tool at any point in a dentist’s career.
Finally, the actions of the patient’s family member were not helpful. All too often we see dental professionals (including other dentists) criticizing someone else’s care without an understanding of all the facts. This criticism is not only unprofessional, but also it goes a long way toward involving the original dentist and the criticizing professional in malpractice litigation. In such a case, usually everyone suffers.
The following suggestions may help dentists when they find their care is not producing the expected results:
- Seek consultative assistance early and often. Seeking the counsel of a trusted colleague is not a sign of weakness or inadequacy; it is the sign of a savvy practitioner.
- Once the issue is adequately understood, communicate clearly and honestly with the patient. Always be honest and document your discussion well.
- If it is necessary to comment on someone else’s work, be sure you first understand all of the facts. Again, be honest, but do so as diplomatically as possible.
In a perfect world, all dental treatment would go as planned and would produce perfect results. Unfortunately, that is not our world. Careful practice and attentive management, combined with absolute honesty and integrity, will produce the best possible outcome and minimize the likelihood of a suboptimal result.
As the nation’s leading dental malpractice insurance carrier, MedPro Group has unparalleled success in defending malpractice claims and providing patient safety & risk solutions. MedPro is the nation’s highest-rated malpractice carrier, rated A++ by A.M. Best. The Berkshire Hathaway business has been defending dentists’ assets and reputations since 1899 and will continue to for years to come.
This document should not be construed as medical or legal advice. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your attorney or other professional advisors if you have any questions related to your legal or medical obligations or rights, state or federal laws, contract interpretation, or other legal questions.
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