Spring 2019 - Dental Insights

Posted in Dental Insights on Friday, March 1, 2019

From Dental Insights, Spring 2019

By Anne Oldenburg, HeplerBroom, LLC

Susan Johnson was in her early 30s and had a history of spotty and inconsistent dental treatment. Having previously undergone the extractions of two teeth, specifically lower left second molar and an upper left third molar, Susan’s periodontal condition was stable. However, she presented to Dr. Smith for evaluation on an emergency basis.

By way of history, Susan reported she went to the emergency room two days earlier for dental pain localized to her upper right side. She was evaluated, advised of a large carious lesion in tooth No. 2 and referred to the Oral Surgery Clinic at the hospital.

The Oral Surgery Clinic scheduled Susan for evaluation and possible extraction two weeks out. However, three days after the emergency room evaluation, Ms. Johnson was in excruciating pain. She found Dr. Smith on the internet and presented to him that day.

A general dentist, Dr. Smith practiced in a geographical area consisting of low income patients. He had extensive experience in performing surgical and simple extractions and was assisted on staff by a dental assistant and an office assistant cross-trained as a dental assistant. He typically performed nearly 200 extractions per month.

Because Susan was an emergency patient, she received an appointment for the end of the day. Dr. Smith obtained a dental and medical history, which was generally unremarkable. He also conducted an intraoral examination, as well as radiographic evaluation.

Exam Reveals Extensive Issues

Dr. Smith’s exam and the periapical radiograph revealed the large carious lesion in tooth No. 2. The radiograph further revealed roots in close proximity to the sinus. The lesion extended to the crestal level. The clinical crown was intact, but the decay was extensive.

Additionally, Susan had tooth No 1. present, but it was not fully erupted and clearly not in function. She reported pain and sensitivity to cold, air and biting.

Dr. Smith advised Susan that tooth No. 2 was restorable, but that the prognosis would be guarded. Upon hearing that the tooth would require endodontic treatment in order to be saved, the patient opted to extract tooth No. 2.

As a result of the clinical evaluation and the radiographic information, Dr. Smith believed he had sufficient information to proceed with the extraction, and he discussed the risks, benefits and alternatives with the patient.

Informed Consent Obtained

Dr. Smith used a detailed informed consent form that specifically listed the possible complications of fracture of the jaw, damage to adjacent teeth and the need for subsequent dental interventions. Susan initialed and signed the consent form, and Dr. Smith informed her that he could proceed with the extraction that same day.

Susan was very motivated to proceed in light of her symptoms. Dr. Smith’s treatment planned a simple extraction but also documented in billing statements that there was potential for the extraction to become a surgical extraction if there were difficulties during the procedure.

Susan was administered local anesthetic, and Dr. Smith began the procedure with a dental assistant present. He initially elevated tooth No. 2 with a straight elevator until mobility was visible. Subsequent to obtaining mobility, Dr. Smith proceeded to use forceps to remove the tooth from the socket. When he grasped tooth No. 2 with the forceps and began to move the tooth downward from the socket, he immediately noted extensive bleeding. He also noticed and that tooth No. 1, the partially impacted third molar, and the adjacent tuberosity had fractured and was coming down in one single piece. The patient sustained a palatal tear when the segment moved.

Dr. Smith immediately told Susan about the complication and asked her if she had past bleeding issues or had been taking an anticoagulant. She responded that she had not. Dr. Smith continued to have difficulty obtaining hemostasis even after numerous attempts. On two separate occasions, he was able to stop the bleeding to the point where he could make attempts to restore the tuberosity and extract the tooth. However, after each attempt, the patient’s bleeding resumed and appeared to be uncontrollable. The doctor did not have other options to attempt to gain hemostasis, such as Surgicel or blood stop.

Dr. Smith used hemostatic gauze and pressure and had a dental assistant bring ice to assist with obtaining hemostasis. These attempts were unsuccessful. Ultimately, Dr. Smith was able to place sutures and successfully remove tooth No. 2. The remaining tuberosity and tooth No. 1 were still in position but had clearly fractured. At this point, in light of the continued issues with bleeding, Dr. Smith decided to summon the paramedics.

Patient Goes to ER

When the paramedics arrived, they assessed the patient’s vitals and transferred the patient to the emergency room of the local hospital. On the gurney, the patient mentioned that she was lightheaded. Dr. Smith was concerned for the patient and followed the ambulance to the emergency room; however, he was prohibited from seeing the patient at the hospital.

All further attempts to contact the patient were unsuccessful and went without response. Dr. Smith did make numerous unsuccessful attempts to follow up with Susan to find out about her postoperative course and condition. Shortly thereafter, a lawsuit was filed.

Records from the emergency department revealed that a CT scan of the facial bones was taken at the emergency room. The CT revealed the absence of the right maxillary third molar, a 1.4 cm alveolar ridge bone fragment containing the tooth socket for the absent second molar, and the third molar tooth free floating and unattached to the maxilla on the right.

The CT scan further demonstrated a fracture line that was nondisplaced, extending along the posterolateral wall of the right maxillary sinus with air fluid level filling most of the sinus. The radiologist concluded that the sinus condition was most likely related to hemorrhage. In addition, the patient had evidence of soft tissue hemorrhage into the right face. The patient was evaluated in the emergency room, kept overnight, and discharged the following day with prescriptions for antibiotics and pain medications and instructions to follow up with an oral surgeon. She was advised she had sustained a fracture and a comminutation into her sinus and would require surgery to repair the defects.

Patient Goes to a Different Hospital

Two days later, the patient presented to a different hospital for evaluation. She had complaints of pain swelling and extensive facial bruising. She provided a history of having the tooth extracted three days earlier. A second CT scan was taken and the radiologist’s impression included fracture of the inferior floor of the right maxillary sinus with fluid tracking into the right maxillary sinus and soft palate, likely iatrogenic-induced, given clinical history.

The radiologist further documented that there was no discrete enhancing fluid collection to suggest the presence of abscess or infection. The patient was evaluated by the oral surgery department. She was diagnosed as suffering from a comminuted fracture, maxillary right tuberosity, exposing a portion of her right maxillary sinus following a difficult dental extraction, and the patient was scheduled for surgery. Although there was concern of possible infection, that was ruled out at the time of surgery. 

On day two of the hospitalization, the patient underwent surgical intervention to remove necrotic alveolar bone segments, tooth roots, and to surgically close the oral antral communication. The oral antral opening was closed by using a buccal fat pad with primary closure and further closure of the oral mucosa extraction site, as well as the palatal tear. The patient remained hospitalized for another day and was discharged with pain medication and antibiotics. The patient followed up in the Oral Surgery Clinic on two occasions and was discharged from care two months later.

The patient’s post-operative recovery was without complications. The surgeons described the patient as having an excellent recovery. The patient did not have any additional treatment or attempts at restoring the area.

Lawsuit Ensues

At that point litigation ensued and discovery progressed. The lawsuit alleged:

• Negligence on behalf of Dr. Smith for carelessly and negligently extracting the tooth without performing a comprehensive evaluation and without consulting with an oral surgeon.
• Dr. Smith should have performed a surgical extraction and sectioned the tooth in order to avoid the fracture.   
• Negligence for failing to control the patient’s bleeding and appreciate her extent of injury during the extraction.  
• Dr. Smith should have referred the patient to an oral surgeon prior to or during the procedure in light of the complicated nature of the extraction.

During discovery, the plaintiff’s attorney focused extensively on Dr. Smith’s inability to manage the complication, once it occurred. The plaintiff’s expert suggested that Dr. Smith should not have proceeded using a simple extraction with a straight elevator and forceps technique. Instead, he should have had the patient undergo sectioning and surgical extraction of the tooth.

Additionally, the plaintiff maintained that Dr. Smith should have had an oral surgeon evaluate the patient prior to the procedure, and when the complication occurred, it was incumbent upon Dr. Smith to reach out to an oral surgeon during the complication and have the patient immediately transferred or evaluated by an oral surgeon. Experts for the defense testified that this was a recognized risk of the procedure.

Defense Experts Weigh In

Defense expert testimony indicated that the evaluation performed by Dr. Smith, clinically and radiographically, supported his treatment plan to initially attempt to perform an uncomplicated extraction. The defense expert further opined that Dr. Smith appropriately and immediately recognized the complication and took steps to control the bleeding. When the bleeding could not be controlled, Dr. Smith made the appropriate decision to transfer the patient to the hospital.

As the case proceeded to trial, the prosecution’s focus was that:

• Dr. Smith should have referred the patient for an oral surgical evaluation prior to proceeding with the extraction  
• He should have proceeded with a surgical extraction, sectioning the tooth to avoid the fracture.
• He was not competent, nor prepared to deal with the complications of bleeding and fracture, once it occurred.

The plaintiff experts suggested that Dr. Smith “was in over his head” and unprepared to deal with the complication. All dentists who testified, including Dr. Smith, the experts, and the subsequent treating oral surgeons testified that if the tooth had been sectioned, and surgically extracted, it was likely that the fracture of the maxilla and tuberosity would not have occurred.

In retrospect, had the fracture not occurred, the palatal tear would have also been avoided. As such, the patient would not have had issues with bleeding. All witnesses admitted that this was a significant and extensive complication that required additional surgery, as well as hospitalization.

Interestingly, the plaintiff did not contend that there was a lack of informed consent, recognizing that Dr. Smith’s consent form was comprehensive, including a risk of fracture that was initialed and acknowledged by the patient. During the trial, the plaintiff sought aggressively to have the consent form prohibited from being used. The jury was shown the consent form on numerous occasions. This was strong evidence for the defense.

Trial Concludes

After four days of deliberations, the jury reported that they could not reach a unanimous verdict, and the court declared a mistrial thus, requiring that the trial be redone.

It was learned during discussion with the jurors that three jurors favored the plaintiff. These jurors had difficulty understanding how a complication of this type could occur without negligence. They relied upon retrospective evidence that this complication could have been avoided if the tooth had been surgically extracted or a surgeon consulted.

The plaintiff oriented jurors also had issues with Dr. Smith’s inability to control the bleeding and manage the emergent situation to avoid the need for paramedics. Having to send an assistant for ice in the midst of an emergency did not seem professional.

What Can We Learn?

Dealing with emergency situations in the dental practice will always result in a retrospective analysis by patients and their attorneys, and ultimately experts, should litigation ensue. It is critical to document all potential complications and be prepared to manage emergencies when they arise.

When an unexpected outcome occurs it is important to include the following information:

• Date, time and place of event 
• The complication
• A factual account
• Identity of all people present
• Patient’s condition before event
• Patient condition after event
• Response to complication, including          
  • Action taken
  • Treatment provided
  • Diagnostic tests
  • Consults ordered
  • Patient response
• The follow-up plan

Document factually and chronologically. As a general rule, do not include words such as, “mistake,” “error” or “inadvertent,” as these might imply a negative connotation.

In this case, an oral surgical consult might have supported Dr. Smith’s clinical decision-making process. A second opinion will always be strong evidence for the defense.

Sometimes, it is important to recognize that you are not the best practitioner to provide the service requested. Others who provide the service on a more routine basis will be better equipped. Do not proceed with a treatment plan if you have reservations about your experience or comfort level. Although it is natural to be empathetic and want to help the patient, never compromise your good judgment.

Additionally, it is critical to be prepared to deal with emergencies that occur in the office. In this case, repeated unsuccessful attempts to control the bleeding, as well as sending the staff out for ice, did not exude confidence and preparedness on behalf of the practitioner.

Place a medical emergency kit in a prominent location and ensure staff are familiar with its contents and trained for emergency situations. Be sure that you have an appointed staff person responsible for maintenance and updating the emergency kit contents.

Emergency preparedness, consultations for second opinions and documentation are strong defense tools. They can help defeat the use of the 20/20 hindsight when complications occur.

This case study was written by Anne Oldenburg. All names used in Dental Insights case studies are fictitious to protect the privacy of the dentist and the patient. Ms. Oldenburg is a partner with the law firm of HeplerBroom, LLC. Ms. Oldenburg focuses her practice on the defense of healthcare professionals, including all aspects of civil litigation including appeals. She also represents professionals before state licensing boards. She has tried numerous cases to successful verdict and handled many cases through successful appeal. Ms. Oldenburg is a member of numerous bar associations including: The Illinois Association of Defense Trial Counsel (Past President, Executive Board of Directors, Co-Chair of Diversity in Participation Committee, Faculty—Trial Academy, Member of Medical Liability Committee and Fall Seminar Committee) and Association of Defense Trial Attorneys. Ms. Oldenburg’s other professional affiliations include the Defense Research Institute, the Physician Insurers Association of America (PIAA), the American Society of Healthcare Risk Management and the Chicagoland Healthcare Risk Management Society. She is on the Board of Trustees for Elmhurst Memorial Hospital. She has published and lectured extensively on issues relating to healthcare litigation and risk management issues.