By Marc Leffler, DDS, Esq. for MedPro Group

Background Facts

An 11-year-old boy, J, was a patient of his pediatric dentist, Dr. P, since approximately age 4, as his parents were diligent in seeing to it that their son’s dental health was a priority. J’s secondary tooth eruption pattern emerged somewhat earlier than the usual, and it became evident to Dr. P, through clinical assessment and cephalometric analysis, that J was developing a bimaxillary protrusion. Having performed orthodontics as part of her practice for many years, Dr. P felt confident planning a course of action that would involve the extraction of 4 premolar teeth in conjunction with orthodontic intervention. After discussing the plan with J and his parents, all were in agreement that this approach was appropriate and it should go forward.

Dr. P stayed away from extracting permanent teeth, so she referred J to a local oral and maxillofacial surgeon, Dr. S, with whom she had an ongoing professional relationship for over 3 decades. While Dr. P had become fully digital in terms of recordkeeping, Dr. S had not, instead using paper, handwritten records. State X, in which both practiced, required that dental records be maintained for adult patients for a period of at least 6 years following patient discharge, and Dr. S was fully aware of that provision, but he was unaware of the longer requirement relating to the records of children. Given that, as with many oral surgeons, Dr. S saw a very large number of patients for a limited time period only, and because his physical patient charts took up much space in his office, he employed an outside, appropriately vetted service that would sort through his records on a biannual basis, and remove and shred all records for patients who had not been seen in at least 6 years.

Upon seeing J, Dr. S scheduled and later performed the extraction of all first premolars – with the consent of J’s parents – exactly as directed by Dr. P during a documented telephone conversation and on a written referral card. The extractions and their healing were uneventful, and Dr. P then proceeded to perform the orthodontics that had been planned. J was never fully pleased with the results, and as he headed to college, he became self-conscious about his dental and facial appearance. By this point, J, now nearly 19, was treated by a general dentist, Dr. G, to whom J expressed his cosmetic concerns. The general dentist shared those concerns and openly criticized the prior treatment plan, advising J that his earlier malocclusion had not been limited to his teeth, but also involved a skeletal deformity; therefore, according to Dr. G, J should not have had the orthodontic treatment that he did, instead deferring all treatment for several years until he could have had 2-jaw orthognathic surgery in conjunction with that orthodontics. Dr. G offered to refer J to an oral surgeon who could evaluate for and potentially perform the maxillary and mandibular surgery to correct J’s appearance, but J decided that he did not want to go through with that surgery while in college, although he remained unhappy with his appearance.

Legal Action

After speaking with his parents and transmitting what Dr. G had said, J opted to obtain an attorney to look into whether Dr. P had wrongly determined the extraction-orthodontics treatment plan, which she carried out in conjunction with Dr. S. The attorney requested complete sets of records from Drs. P and S, which would be reviewed by pediatric dentistry, orthodontics, and oral surgery experts retained by the attorney. Dr. P timely complied with the attorney’s request, but Dr. S was unable to do so, and so advised the attorney, as J’s records had been destroyed more than a year prior, in conformity with his usual practice methods.

Based solely upon their reviews of the records, radiographs and models from Dr. P, as well as those from Dr. G, the attorney’s team of experts agreed with Dr. G that J had been misdiagnosed as a dental, rather than skeletal, deformity case from the start, leading to improper treatment, thereby causing the unsatisfactory result. The attorneys, on behalf of J, filed a dental malpractice suit against Drs. P and S, claiming that they had been negligent in their respective treatments. The suit was timely because minors in State X are afforded a longer statute of limitations period than their adult counterparts, and this time period fell within that extension.

Discovery and Case Resolution

Both of the now-defendants notified their professional liability carriers, who assigned attorneys to represent Drs. P and S. In their Answers to the Complaint, both defense attorneys asserted that their clients had met the standard of care and were, therefore, not liable for the result that J had.

In that J’s attorneys had never received copies of Dr. S’s records, their first order of litigation business was to seek a court order from the presiding judge which mandated his providing those records to J’s attorneys. Dr. S’s attorneys admitted to the judge that the records were no longer available due to Dr. S’s process of purging old records from his office, but argued that his treatment was based solely upon the request of Dr. P, who was “quarterbacking” the orthodontic treatment, and that there were no complications which arose from the extractions. J’s attorneys responded that it would be prejudicially unfair of the court to force them into pursuing malpractice litigation against one of the defendants without the benefit of that defendant’s records, adding that the absence of those records was due solely to Dr. S’s failure to know and abide by the statutory requirement that the records of minor children needed to be retained in State X for a longer period of time than for adults. The court asked all counsel to provide legal briefs discussing all of these issues.

In those written arguments, J’s attorneys argued that Dr. S had spoliated (“destroyed”) the records which would have served as crucial evidence, and should therefore be sanctioned by holding him in default – effectively handing a litigation victory to J, as against Dr. S – or, in the alternative, reserving that ultimate decision for trial but at least advising that potential trial jury that its members might draw the strongest of inferences against Dr. S during deliberation. The court held that, in its view, while Dr. S had been negligent in failing to retain J’s records as statutorily required, he had no malicious intent in doing so at the time. Therefore, Dr. S would not be defaulted, but trial jurors would be affirmatively instructed by the court that they may properly infer from Dr. S’s actions that any or all of his conduct had been improper and that they may properly consider that impropriety in their considerations regarding Dr. S’s liability.

Dr. S’s attorneys advised their client of the severe and significant impact that this ruling might have, and that it may well inflame a jury against him to the point that they might even lash out at him through their verdict. Dr. S asked his attorneys to try to seek a settlement prior to trial, which they successfully did. Dr. P believed that she had acted entirely appropriately in her diagnosis and treatment plan, so she refused to settle and opted to go on to trial. (The trial of Dr. P is outside of the boundaries of this case study.) Despite the settlement, which J accepted but still believed was low in monetary value, J decided to file a disciplinary complaint against Dr. S regarding his premature destruction of his dental records. After investigation, the Dental Board found that Dr. S had violated the statute of State X, so it levied a significant fine against Dr. S, placed him on probation for 2 years, and required that he complete continuing dental education on the subject of dental records maintenance.

Takeaways

It goes without saying that dentists are not, and are not expected to be, legal experts regarding the issues which surround their practices. But there are certain principles about which they must maintain awareness, in order to protect the rights of their patients and to safeguard themselves. Among those principles are the maintenance and retention of dental records. While electronic records are relatively easy to keep – as computer hard drives, either internal or external, can be expanded so as to allow preservation compliance – handwritten paper charts can become unwieldy, especially in dental specialty practices in which patient numbers tend to be much greater than in primary dental care offices. It is not the purpose of this case study to suggest what types of recordkeeping dentists should employ, or how they should maintain records, but it is a purpose to point out that the time requirements are blind as to method when it comes to maintenance/retention time.

This case touches on the concept of statute of limitations, which in this context is the amount of time following a procedure or the carrying out of a treatment plan that is given to patients to begin a malpractice suit against treating dentists and dental specialists. Just as the time periods for maintenance and retention of dental records are State-specific, so are statutes of limitations, so it would do practitioners well to familiarize themselves with these requirements and allowances for each State (or District) in which they practice, in order to be sure that they are fully in compliance. If they are in doubt, they should contact their malpractice carrier or a personal attorney, but the failure to know and comply with the law is not an excuse, as Dr. S learned here.

The role of Dr. G’s voiced criticisms to J about his prior treatment should not go unaddressed. It would be difficult to argue that, without his denunciations of the care provided by Drs. P and S, the actions taken against those practitioners would have gone forward. We sometimes refer to such behavior as “jousting”, or the throwing under the bus of dentists by subsequent-treating fellow dentists. It is, unfortunately, common enough that we can reasonably conclude that a fair percentage of dental malpractice cases are initiated as a direct result of that type of critical commentary; why dentists so frequently engage as such is unknown, but it has seemingly become a component of the culture of dentistry. While the tenets of ethical dental practice do obligate dentists to point out to patients what they believe to be problematic conditions in and around their mouths, communication can be transmitted in less harsh ways, at least in part due to the immutable concept that the later dentist was not standing in the prior dentist’s shoes when certain decisions were made and treatments undertaken.

Finally, this case study demonstrates that lawsuits are only one method that patients may use when they are dissatisfied with dental treatment. Patients have the option – either instead of a suit, or in conjunction with a suit, or following the conclusion of a suit – to file complaints with a Dental Board. These Boards, as affiliates of licensing authorities, have powers that can extend from as little as letters of reprimand to revocation of licenses, so Board complaints must be taken very seriously and should, therefore, involve attorneys to represent the interests of the dentist under review; many malpractice policies provide for such legal representation. And even with a malpractice suit settlement agreement in place that provides for confidentiality, it is generally difficult, if not impossible, to prevent a patient from going forward and filing a complaint with a government authority.

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