Winter 2019 Dental Insights

Posted in Dental Insights on Friday, November 15, 2019

From Dental Insights, Winter 2019

Tony Stack was a 71-year-old retired construction worker who was a previous smoker. He had seen several dentists over the years, rather than having one regular dentist.

Mr. Stack had no natural teeth on the upper arch. He wore a conventional complete upper denture. On the lower arch, he had four natural teeth, with crown and bridgework making up the remaining areas. Dissatisfied with his denture and restorative work, Mr. Stack wanted to replace his ill-fitting teeth and improve the look and feel of his mouth.

He saw an ad in a local newspaper for the Southtown Dental Group, a practice near Mr. Stack’s home. The ad promoted their restorative work, along with implant reconstruction using four implants. Mr. Stack liked the pictures on the practice’s ads and website.

Southtown was run by general dentist, Dr. Park, who had four offices including an oral surgeon, Dr. Shores, and a restorative dentist, Dr. Kim.

The Consultation

On April 23, 2016, Mr. Stack had a consultation with Dr. Kim, who explained the process to improve his teeth in overall function and appearance. That consultation involved an examination, taking of films and a separate consultation, which included an explanation of options, alternatives and related risks.

Mr. Stack was given an estimate for extraction of his remaining lower teeth, with a fixed lower hybrid prosthesis, as well as a new conventional upper denture.

• Dr. Kim would do the restorative workup and presurgical planning for the restorations.
• Dr. Shores would perform the surgical placement of the lower implants in connection with Dr. Kim’s workup.
• Dr. Kim would then complete all of the restorative work.
• Southtown would handle the billing (they offered a commercial-type of credit plan for the costs of the care).

After the hour-long consultation, Mr. Stack told Dr. Kim he wanted to proceed with the proposed dental care. He believed it would resolve his dental issues and his “terribly uncomfortable” upper denture, which made eating certain foods very difficult. Additionally, he felt the dental work would add years to his life and improve his appearance. He would no longer have to “eat only oatmeal.”

Preparing for Treatment

Mr. Stack returned a week later to begin the preparatory process and to sign forms—financial and otherwise—including consent forms. Dr. Kim was present for portions of this appointment when Mr. Stack consented to an essentially full-mouth reconstruction and the practice’s credit and financing plan. Surgery was planned for a month later.

The practice staff gave Mr. Stack a pamphlet on presurgery preparations, the details of how the surgery would be performed and what to expect afterward, and the risks and complications of the procedure.

After reviewing the informed consent and treatment information, Dr. Kim prepared and placed a new upper denture. Mr. Stack was pleased with the denture’s comfort and aesthetics.

The Surgery

Surgery on the lower arch was planned for May 5, 2016. On the day of the surgery, Dr. Shores reviewed the workup with Dr. Kim and met with Mr. Stack to tell him he would be doing the surgical part of the procedure. Dr. Shores obtained Mr. Stack’s consent for the surgical portion of the case. The surgery went as planned, without complications.

Following surgery, Dr. Kim assisted with placing the interim lower overdenture and made minimal adjustments to the fit of the upper to lower dentures. Mr. Stack set a follow-up appointment for the following week.

The evening after surgery, Southtown’s office manager called Mr. Stack as part of the practice’s regular protocol. Mr. Stack said he was fine but that he had been trying to get the lower fixed hybrid prosthesis overdenture out with his pocketknife to do some adjusting. The office manager told him emphatically not to do that and to see a dentist for any adjustments. He refused saying, “I do this all the time and know what I’m doing.”

Follow-up Care

A week later, Mr. Stack returned for the set appointment. He said the prosthetics were comfortable and looked good. However, Mr. Stack told Dr. Kim at the end of the appointment he wanted the “tool” to remove his lower fixed hybrid prosthesis himself.

Dr. Kim cautioned Mr. Stack adjustments should only be done by a dental professional as there are “special settings, values and instruments for this.” The remainder of the appointment proceeded without incident. Mr. Stack was satisfied with the adjustments, and he received an occlusal guard to wear.

Mr. Stack returned for his next appointment with Dr. Kim in June 2016 and was healing well. There were sharp points he felt with his tongue, and those were smoothed out. Mr. Stack was satisfied with the adjustments, which seemed to progress normally. Nonetheless, at the end of the appointment, he again asked for the dental tool to do adjustments himself. He became upset when the staff refused.

Mr. Stack was expected to return for the final placement of the permanent lower fixed hybrid prosthesis. However, he never returned, despite several reminder calls. In November 2016, Mr. Stack called the office and again requested the dental tool to remove his lower denture since “he’d paid for it.” When Dr. Kim explained that they couldn’t provide him with the dental tool. Mr. Stack swore at him on the phone.

In November, the office sent Mr. Stack a letter, requesting he return to complete treatment, but he never returned. The following month, in December 2016, Southtown sent Mr. Stack another letter—this time advising him to seek care elsewhere. The practice provided recommendations for future dental care. Mr. Stack had paid for all of his care except for the costs associated with the completion of the final lower fixed denture.

Lawsuit Ensues

In May 2017, Southtown got a letter from a law firm requesting records on Mr. Stack’s behalf. In July 2017, Mr. Stack, acting as his own lawyer (meaning the prior law firm requesting the records did not take his case), filed a complaint against Southtown, Dr. Kim and Dr. Shores. In the complaint, Mr. Stack asserted:

• He never wanted a fixed lower denture—he wanted a “snap-in” or removable lower overdenture.
• The denture’s fit was off-center, and it was “screwed in too far forward.”
• The upper denture was uncomfortable and off-center.
• He had difficulty swallowing and the denture was a food trap.

Mr. Stack produced evaluations by two other dental providers who had evaluated him and given written cost estimates for a new reconstruction of the upper and lower dentures. He also claimed that all defendants had lied to him about multiple matters concerning his care.

Southtown, Dr. Kim and Dr. Shores all had separate lawyers representing them. Favorably to the defense, the defendants had strong mutual respect for each other and were supportive of each other’s patient care. This allowed for a unified front in their defense against Mr. Stack.

The Case Goes to Court

Because malpractice rules required a dental report that would support for any claims of negligence, the court allowed Mr. Stack to ask the subsequent treating dentists if they would opine there was a basis for a lawsuit. The first dentist refused; the second wavered a bit but provided a supplemental estimate to redo the dentists’ work. Defense counsel asserted that such an addendum was not legally sufficient under the applicable laws. The defense also subpoenaed the testifying dentist’s records.

As a result, the wavering dentist backed off and told Mr. Stack he no longer wanted to be involved in the case. The court dismissed the case, but left it open for Mr. Stack to amend the case, recommending he find a lawyer who would comply with the law. At the next court date, Mr. Stack told the court he had sought out “three or four” lawyers, all of whom turned down the case.

After nearly nine months of fighting in court and continued efforts by the defense to dismiss the case for failure to file the requisite report, the court ultimately entered a final dismissal for the defense.

However, Mr. Stack refused to go down without one last fight and he started to file an appeal. Halfway through that process, he gave up, failing to meet the requisite deadlines. The appeal was dismissed in February 2018, finally ending the litigation.

What Can We Learn?

Documentation is Critical

Southtown and the doctors all did an effective job of documenting Mr. Stack’s dental workup, as well as the difficulties they encountered with Mr. Stack’s unusual requests about removing his own fixed lower denture. They documented:

• His understanding of the care to be provided
• The risks, benefits and alternatives of care
• The cost of the dental care
• Mr. Stack’s consent
• The patient’s satisfaction with his upper and lower dentures
• His unusual requests and why they denied the requests
• The need for follow-up care
• The proper and professional termination of the patient’s care

Specifically, the consent forms were precise, tailored and detailed about the nature of the procedure, the risks, the alternatives, and the alternative of no treatment. They were completed well before the procedure took place, allowing ample time for questions or issues to be addressed.

This process of consent and attendant documentation provide strong evidence of the practitioner’s level of care, competence and credibility, all of which are key to a successful defense. Indeed, many lawyers will turn away plaintiff cases where this type of documentation is strong and detailed. The chart is an integral component of the defense of any malpractice case. Here, it seems that a review of the chart by the law firm was one of the reasons the law firm chose not to take the case, as evidenced by the timing and the good documentation.

A Unified Front Matters

Southtown and the doctors stuck together during Mr. Stack’s treatment and during the lawsuit. This unified approach made it harder for Mr. Stack or the court to use divisiveness to further the case. Ultimately, this achieved a positive result for all defendants.

If the defense of a case can be fractured apart and defendants criticize each other, the defense becomes much more challenging. Practitioners who stand united have a stronger chance of success against the sole plaintiff. A united front also helps to present a higher level of competence, professionalism and credibility among a group of providers when all are complimentary of the care of the other.

You Can’t Avoid a Claim

This case goes to show that despite high-quality care, strong efforts and weak substantive claims, lawsuits still can be pursued. All of the defendants expended time, money and stress fighting this case. However, their efforts were rewarded with a successful result.

Records that are specific, detailed, not hurried, and clear in their content and chronology reflect well on the dentist’s credibility and competence and help bolster a defense. Good records combined with the practitioners standing together resulted in a successful outcome in this lawsuit

This case study was written by Linda Hay, J.D. All names used in Dental Insights case studies are fictitious to protect the privacy of the dentist and the patient.

Linda J. Hay is a partner in the Chicago office of HeplerBroom, LLC. Ms. Hay has practiced in the professional liability defense arena for more than 25 years and has tried numerous cases to verdict. She is actively involved in a variety of defense bar, professional liability and risk management organizations. Ms. Hay can be reached at Linda.Hay@heplerbroom.com.