A Case Study: Accidental Ingestion of a Surgical Instrument in the Dental Chair

Facts of the Case

A 37-year-old woman was seen over a two-year period by her general dentist for multiple extractions, root canals and crowns. On most of these visits, she requested and was given prescriptions for pain medications.

On May 6, 2013, the patient had an appointment for an implant at tooth #13. This was the patient’s first implant procedure. An informed consent discussion took place, and the patient was advised that the procedure might not be 100% successful. It was the dentist’s custom to inform patients that implants can and do fail. Part of this discussion described the placement of a metal cap over the implant for approximately four months to allow the site to heal. The dentist stated the patient was further advised that these caps can loosen or unscrew and that, occasionally, a patient can accidentally swallow the cap. However, none of this consent discussion was documented in the patient’s dental record. Rather, the dentist later claimed this was merely “regular” office protocol. Further, the patient did not sign a consent form before the procedure.

The implant was placed uneventfully.

At the conclusion of the procedure, while the dentist was placing the cap using a surgical hex, the screwdriver accidentally slipped into the patient’s mouth, and she swallowed it. The patient was sent immediately to the emergency room for evaluation and given a prescription for 40 Percocet 10/325 to be taken every four hours.

Six days later, the patient returned for suture removal. The site appeared to be healing. However, the patient complained of pressure in tooth #12. She was given a prescription for 30 Percocet 5/325. When she returned two weeks later for treatment on another tooth, she informed the dentist that she had undergone a laparoscopy and enterotomy to remove the foreign body. She claimed that she still had continuous epigastric pain and difficulty swallowing. The dentist then gave her a prescription for 40 Percocet 10/325 to be taken every four hours for pain. One week later, the patient called requesting even more pain medication. The dentist again prescribed 40 Percocet 10/325 for her to be taken every four hours. The patient was last seen by the dentist in the spring of 2014.

The Lawsuit

The primary means of communication between the patient and dentist were text messages. Specifically, she sent texts regarding her pain with requests for more opioid prescriptions. The dentist also responded to the patient by texting her from her personal cellphone. After a lawsuit was commenced, the defense counsel asked the dentist to retrieve and print the text messages. The dentist could not do so as the cellphone in question had been damaged and was replaced. Thus, most of the text messages were lost.

In the spring of 2014, the dentist became uncomfortable with the patient’s persistent requests for pain medication. Additionally, the patient’s pharmacy was so concerned about the amount of Percocet being prescribed by this dentist that the pharmacy notified the United States Drug Enforcement Agency (DEA) and advised the dentist that they had made this report. The dentist subsequently contacted the patient and advised her that no more pain medication would be prescribed. The patient then stopped coming to the dentist’s practice for care and commenced a lawsuit due to her alleged injuries caused by swallowing the screwdriver.

Expert Reviews and Settlement

This case was reviewed by several experts. The MLMIC-insured dentist admitted to failing to drape the hex and claimed there was no place on this instrument to tie floss. Our experts noted it was not unusual for patients to swallow foreign bodies during a procedure. However, they questioned why the patient was taken to surgery so quickly and whether this surgery was medically necessary. They noted that even after the patient swallowed the hex, she returned to the office to have more implants. Apparently, the patient refused to be treated or seen by any other dentist in the practice. The dentist also claimed that the patient constantly called and texted that she was in a great deal of pain.

Although our experts opined that it was not unusual that a patient might accidentally swallow an instrument, they determined that this case was problematic due to the large doses of Percocet prescribed not only for a long period of time but also for non-dental complaints. One of our experts questioned whether the patient’s rush to undergo immediate surgical intervention after swallowing the hex was a way to ensure she could continue to receive more pain medication. Because of the missing texts, together with the large number of prescriptions for controlled medications, the case was ultimately settled on behalf of the insured.

Legal Takeaways

Several serious issues emerged in this case that led to the eventual settlement.

Lack of Informed Consent

Crucially, the dentist failed to have any documentation supporting an informed consent discussion with the patient. Although the dentist claimed to have had her routine consent discussion, this is not an effective defense. Most likely, the jury would deem this to be self-serving. Procedures that are invasive, high-risk or irreversible require an informed consent discussion. Any treatment of a patient, even with due care by the dentist, may lead to unwanted results and/or unforeseen mishaps. Those possibilities must be presented to the patient and documented in writing. Therefore, the patient should not only have had a discussion with the dentist with the opportunity for asking questions but also an informed consent form should have been prepared and signed.

Additionally, dentists must document in the dental record that an informed consent discussion has occurred. The discussion of the risks, benefits and alternatives, including no treatment and the risks of the alternatives, must be included in this documentation. Because this documentation becomes part of the dental record, it is permanent and can be used as a defense against an allegation of a lack of informed consent. If there is no documentation, the memories of this discussion are fallible and subject to being forgotten, which will hurt the defense of the dentist.

Foreign Body Ingested

The aspiration or ingestion of foreign objects are potential complications that can and do occur on occasion during dental procedures. Precautionary measures must be taken to avoid such situations. When such events occur despite precautions, early recognition and diagnosis are key to preventing serious consequences. Any delay in the proper management and timely intervention of such accidents may cause severe sequelae and can even be lethal. When the accidental ingestion of a foreign object occurs, the dental practitioner should immediately confirm that there are no signs of obstruction to the throat or breathing. The dentist must then explain the situation to the patient and promptly refer him or her to the emergency room for radiographic examination to locate the exact position of the object. In this case, the dentist should have taken appropriate preventative measures prior to the treatment, including draping, but did not do so. However, the dentist did send the patient to the emergency room promptly for evaluation and possible treatment.

Lost Text Messages

Another very serious deficit in the dentist’s care was the use of texting as the main means of communication with the patient. Unfortunately, the dentist also failed to place those texts into the dental record. The loss of these texts resulted in an incomplete dental chart, making the defense of this case even more difficult. There may well have been texts that could have been useful to assist in the dentist’s defense. A text message containing protected health information (PHI) that relates to the patient’s treatment must be made a part of the dental record. Since these communications with a patient would legally be considered part of the dental records, dentists need to be mindful of messages that sit in their cellphone’s inbox and texting record. The longer texts are maintained on the cellphone, the higher the risk for intrusion, theft or, in this case, loss of data. Furthermore, when a text message includes PHI, the dentist must be compliant with all applicable laws that govern the handling of this information, including the Health Insurance Portability and Accountability Act (HIPAA). Therefore, you must retain the text messages for the legally required period of time as part of the dental record. The greatest concern of the reviewer was that the cellphone used was not secure, which is an issue under HIPAA.

Drug-Seeking Patient

The most detrimental facts in this case were the dentist’s continued prescription of large doses of pain medication. This dentist even prescribed opiates for the patient’s pain that was due to GI complaints and unrelated to the dental treatment. This patient’s behavior showed all the typical signs of a “drug-seeking patient.” These signs included the patient’s refusal to see any other dentist in the practice and her constant calls and texts to the dentist demanding pain medication, even though the pain never seemed to resolve. It was also suspicious that the patient underwent unneeded surgical intervention, possibly to obtain more pain medication. If the dentist had stopped providing prescription pain medications to this patient at the onset of treatment, the patient may not have even presented for the implant procedure. Thus, the dentist could have avoided all the sequelae that resulted.

MLMIC policyholders can reach out to our healthcare attorneys for questions about informed consent, documentation, patients with drug-seeking behaviors or to ask any other healthcare law inquiries by calling (800) 275-6564 Monday-Friday, 8 a.m.-6 p.m. or by email here.

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This document is for general purposes only and should not be construed as dental or legal advice. This document is not comprehensive and does not cover all possible factual circumstances. 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 for any questions related to legal, dental or professional obligations, the applicable state or federal laws or other professional questions.