By Marc Leffler, DDS, Esq. for MedPro Group

Underlying facts

Dr. D was a well-experienced general dentist who practiced in a small rural town, in which she was the only dentist. As a result of the lack of any dental specialists located less than nearly an hour away, and having kept up-to-date with the current state of dentistry, she was familiar with practicing the full scope of dentistry, including implant placement and restoration.

T was a longstanding patient in Dr. D’s office; a middle-aged man whose medical history included diabetes and mild hypertension, both controlled well with oral medications, he had worn a removable partial denture for many years, to serve as a replacement for lost lower molars bilaterally. He and his wife recently became empty-nesters, so T felt that he was in a financial position to be able to have implants placed and restored, and finally be able to throw away his removable appliance. After clinical and radiographic exams, Dr. D proposed placing implants at the sites that teeth # 18, 19, 30 and 31 had previously occupied, with the subsequent placement of individual crowns after osseointegration. T agreed to the plan.

On the day of implant placement, which would be accomplished with local anesthesia, T sat in the dental chair and was placed in a nearly supine position. That day, Dr. D was assisted by a per diem dental assistant because her usual assistant was in the midst of serving jury duty. Dr. D methodically made osteotomy sites to accommodate implant fixtures in all 4 of the planned locations.

After uneventfully inserting the first fixture at the #31 site, Dr. D was in the process of bringing the second fixture to the #30 site, when T unexpectedly cleared his throat, causing him to move. Dr. D lost control of the implant fixture, leading immediately to T coughing profusely for nearly a minute, with both Dr. D and her assistant losing sight of the fixture. Once T “calmed down” and said that he was “alright to continue”, Dr. D did just that, spending the next 90 minutes placing the remaining 3 implants and suturing the gingival tissues.

At the completion of the day’s dental treatment, T said that he felt a nearly constant urge to cough, so Dr. D suggested that he go to a local hospital emergency room for evaluation, and T did exactly that. At the ER, a chest x-ray was taken, which clearly showed a dental implant in the patient’s right lung. Shortly thereafter, T was taken to the operating room where, under general anesthesia, a bronchoscopy was performed which led to successful removal of the implant. T remained in the hospital for 2 days, receiving IV antibiotics and respiratory therapy; after discharge, T was followed by a pulmonologist for what T described as chest discomfort and periodic coughing. No further respiratory treatment was provided, but T claims that the symptoms never fully abated.

Legal steps taken

T initially contacted Dr. D’s office, asking for reimbursement of the hospital expenses because that hospital was outside of his insurance network. Dr. D responded to T that she did not see why she should have to pay him for an event that occurred because T had suddenly moved.

Upset at Dr. D’s response, T contacted a local attorney who obtained all of T’s dental and medical records and the opinions of dental and pulmonology experts. The dental expert told the attorney that there was “no justifiable excuse” for not adequately protecting against the aspiration event – by setting up an oropharyngeal drape to prevent passage into the trachea and beyond, by having attentive dentist and assistant vigilance and suctioning, and by assisting a more gravitationally favorable path for the implant to take with the patient in a sitting rather than supine position; the pulmonology expert, who happened to be T’s treating physician, concluded that the aspiration event created all of T’s respiratory problems to date, and expected that his respiratory function would never return to normal and subjected him to a greater risk of respiratory infections going forward.

On behalf of T, his attorney filed a lawsuit against Dr. D. Upon being served with papers, Dr. D contacted her malpractice carrier, which assigned defense counsel. After meeting with Dr. D and hearing her views, her attorneys obtained their own opinions from experts in the same fields of practice. Multiple potential defense expert dentists concluded, as did T’s dental expert, that Dr. D’s actions could not be successfully defended; similarly, a potential defense pulmonologist agreed with T’s treating physician’s opinions, but was not as convinced that T was at greater subsequent infection risk.

After several discussions between Dr. D and her defense counsel, during which the opinions of all consulted doctors were considered, Dr. D decided that it would be in her best interests to ask her carrier to make an offer of settlement, once his attorneys communicated a demand. In the end, all parties agreed that T would settle the case if paid a sum of money that would cover his hospital expenses and a small amount for his post-dental-treatment experience and potential future problems. The portion of the money that T ultimately received, after attorney and expert fees, and initial litigation costs, was actually less than the sum he requested directly from Dr. D over a year prior.

Takeaways

This case raises a number of issues, the first of which is the continually growing number of swallowing/aspiration events during dental treatment. The opinions provided by the various experts in this case exemplify what is being seen in many swallow/aspiration situations, namely that it is very difficult, if possible at all, to defend these types of events. (It is not hard to imagine the impact upon a jury when its members would be shown that chest x-ray with the implant being where it never should be.) While T’s sudden movement – at a most inopportune time – could not specifically have been foreseen, the loss of grip of an implant fixture, or endodontic file or actually any small object dentists routinely use in patients’ mouths, is readily foreseeable, such that prevailing expert thought is that dentists ought to have protective barriers and procedures in place to stop the object from traveling and to be able to immediately retrieve them safely.

It is worth pointing out that, once an object dropped in the mouth is lost from sight, there is no way to know, without medical radiographic studies, whether that object was swallowed, aspirated, suctioned or dislodged safely out of the mouth. The longer an aspirated object remains in the respiratory tree, the more likely it is to serve as a nidus for infection. And the longer a swallowed object remains, the more likely it is to travel beyond the stomach and into the intestines, potentially piercing through that wall; while medical professionals may determine that, in some situations regarding swallowed objects, the preferred approach is to watch and wait for the object to pass in feces, such decisions should be left entirely to those physicians rather than become the sole available course due to delays in dentists’ referrals. Here, Dr. D completed what was essentially an elective set of procedures, which took 90 more minutes, thereby delaying needed medical care: that period of time did not complicate the recovery of the aspirated implant, but it might have done so had the implant instead been swallowed.

When T initially approached Dr. D, seeking that his expenses be covered, Dr. D decided to act on her own, without consulting with her malpractice carrier. Dentists do not have expertise in managing the business – and potentially litigation – effects of many untoward events, but malpractice carrier staff members do. Even if Dr. D would have heard from that consultation a viewpoint with which she disagreed, she would still have availed herself of the knowledge of those who work with those very issues every day. There is no way to know whether an immediate call to the carrier would have changed anything, but it is always a good idea – and sometimes even required by policy language – to inform the carrier when potentially serious problems arise. Carrier staff are there to assist dentists through waters that are, for them, uncharted.

Finally, we address the “sticky” issue of working with assistants or other office staff personnel who are not familiar with the way a dentist practices, clinically and/or administratively. It is a fact of practice life that treatment cannot come to a halt if one key employee is out for a day or a prolonged period. But the dentist needs to realize the implications of an often last-minute change, and raise the level of vigilance and oversight. In a litigation setting, where the dentist will be viewed as the “supervisor” of anyone working with that dentist, the dentist will most likely be treated as the responsible party, even if the employee’s actions occur outside of the dentist’s immediate space, and even if the employee’s actions are not what the dentist would have sanctioned if aware of the circumstances beforehand.

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.

Note that this case presentation includes circumstances from several different closed cases, in order to demonstrate certain legal and risk management principles, and that identifying facts and personal characteristics were modified to protect identities. The content within is not the original work of MedPro Group but has been published with consent of the author.

This document should not be construed as medical or legal advice and should not be construed as rules or establishing a standard of care. 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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