Case Study: A Costly Treatment Plan Results in a Mandibular Fracture and Early Settlement

Although many dentists are performing implants and related procedures, these procedures have serious risks which require not only appropriate patient selection, but also reasonable skills and sufficient experience. In the following case, not only did the dentist fail to have sufficient skill for the procedure, but his poor documentation compounded the difficulties in defending the claim against him.

Facts of the Case

The patient was a 79-year-old female who had been referred by her treating dentist to the MLMIC-insured’s office on November 28. She complained that she was unhappy with her upper denture, and she expressed a desire for implants. The patient was in good health, except for hypertension and hypothyroidism, both of which were controlled by medications.

The MLMIC-insured dentist performed an oral examination and a digital panoramic x-ray study. He advised the patient and her son that she lacked sufficient maxillary bone to support implants. However, he suggested that if he first augmented the maxillary bone, he could do implants. His recommended treatment plan consisted of sinus elevation surgery with bone grafts from the mandible, followed by additional bone grafting to the maxilla from donor sites in the hip. The bone graft from the hip would be performed in another state by the dentist’s mentor and would require a hospital admission.

The dentist advised the patient that he would accompany her out of state, pay for her airfare and assist at the hip graft retrieval. Once that was completed, he would then place a complete set of upper implants. The cost of all this treatment was estimated to be in excess of $50,000.00. The dentist’s notes revealed he discussed other options, including subperiosteal maxillary implants or not doing implants at all. The patient then agreed to proceed with the initial plan he recommended. He gave the patient a booklet generally describing the implant process, but the booklet did not contain information on the sinus lift procedure with bone grafts. Nor did it describe the proposed maxilla grafts from the hip. The patient paid the dentist a retainer of $4,000.00, as none of the proposed treatment was covered by insurance.

At the second visit three weeks later, the dentist reviewed the implant booklet with the patient and had her sign a consent form for the implant surgery. However, the consent form did not specify that a sinus lift/bone graft procedure was to be performed. It contained only a catchall phrase that included anything “. . . necessary to accomplish the placement of implants under the gum or in the bone.” Although the consent form stated there was a risk of bone fracture from instrumentation during the implant placement, it did not identify a donor site fracture as a possible risk of a graft procedure.

On December 22, the patient underwent the sinus elevation procedure at the dentist’s office. The operative report documented that he removed five bone plugs from the anterior mandible, each approximately 5 millimeters in length and 5 millimeters in diameter. These plugs were then mixed with cadaver bone and antibiotics and placed in 20×10 millimeter windows on the left and right sides of the sinus. The grafts were taken in a straight line over a width of approximately 25 millimeters from the outside of the left graft to the outside of the right graft. The grafts intersected with each other, which resulted in no bone remaining between the two grafts where they came together. The sinus lift surgery was uneventful. The patient was then discharged to her son’s home with a prescription for Vicodin.

The next day, the patient’s son called the dentist at home because the Vicodin had made the patient nauseated. The patient was advised to discontinue the Vicodin, take Tylenol, drink fluids and remove her upper denturesince it was causing her additional pain and discomfort.

On December 25, the patient called the dentist at home and reported that she was doing well and the nausea had subsided. The patient was advised to continue eating a soft diet. This was documented in her record.

However, on December 26, the patient was taken by ambulance to the emergency department, accompanied by her son. She had experienced a syncopal episode at the dinner table and complained of nausea and “dental” pain due to her jaw surgery. The emergency department record contained a diagram of bruising on both the right and left side of the patient’s face, under the corners of her mouth. The emergency physician’s impression was a syncopal episode related to either a vaso-vagal response or dehydration due to pain from dental surgery. The patient was treated with IV hydration, Dilaudid for pain, and referred back to her dentist for evaluation of the source of the dental pain. She was discharged with prescriptions for Phenergan and Dilaudid.

The next day, the patient was seen for a post-procedure visit. The dentist noted a sore spot around her upper denture and adjusted the denture. He documented that she was otherwise “healing well.” The patient advised the dentist of her emergency room visit. The patient also advised the dentist that she had decided not to undergo the bone grafting and implants.

The following day, the patient was again seen at the dentist’s office. He documented that the patient was “doing well,” “healing well” and had “no bruising.” That same evening, the patient’s son again brought her to the same emergency department with complaints of “severe dental pain” at the donor site. The emergency department record documented her continued complaints. She was medicated with Dilaudid and again referred back to her dentist.

On January 2, the patient’s sutures were removed, and another adjustment was made to her upper denture. The dentist’s notes again stated that the patient was “healing well” and had “no bruising.”

On January 4, the patient’s son called the dentist to report continued complaints of pain and nausea and request medication for both, which the dentist prescribed.

That same evening, the patient was brought to the emergency department for the third time with the same complaints of severe dental pain. Once again, she was medicated for pain and released to follow up with her dentist.

The next day, the patient’s son called the dentist to report that the patient appeared to have a sore spot. She was given an appointment for the following day. The dentist documented that the patient had been seen again at the emergency department and further stated that a “PA at the hospital said that she seemed like the type that needed attention.”

The patient’s family cancelled the office visit scheduled for January 6th, because the patient had been unable to sleep and was now resting. The dentist prescribed a sedative, Triazolam, to assist the patient to sleep. However, nothing in the dentist’s records explains why the patient was having difficulty sleeping. Unfortunately, that same evening, the patient was again taken to the emergency department with continued complaints of severe dental pain. This was her fourth visit to the emergency department in a period of less than two weeks. She was medicated for the pain, discharged and again referred back to her dentist.

The patient called the dentist the next day. He documented that she was doing well and had “no specific complaints, just questions.” These notes directly conflicted with the patient’s EBT testimony. She stated that she had called the dentist’s home to discuss her severe pain but was unable to speak with the dentist because he was unavailable.

On January 8, the patient advised the dentist that she had slight oral bleeding which had resolved. She refused to come in to be examined. However, the patient’s son called and scheduled an appointment for later in the week.

On January 9, the patient came to the dentist’s office complaining of excruciating jaw pain. She had a large mandibular bruise which extended from the center of her chin up to her right ear. The dentist asked the patient if she had fallen or had been hit. The patient denied both. Her daughter-in-law who was present, stated jokingly, “Don’t look at me, I didn’t hit her.” The dentist documented that he suspected elder abuse but did nothing else about it. The dentist’s office staff, however, during their deposition testimony, concurred that the daughter-in-law’s comment was said in a joking manner.

Finally, the dentist performed a Panorex film, which clearly showed the mandibular fracture. He immediately contacted an oral surgeon, and the patient was sent to his office with her x-rays. The oral surgeon confirmed the mandibular symphysis fracture and immediately admitted the patient to the hospital. The next day, she underwent an open reduction and internal fixation of the fracture, with placement of two mandibular bone plates. She was discharged on January 17.

Two days later, the patient was readmitted to the hospital because the internal fixation plates had failed. She underwent a second open intra-oral reduction, using larger splint plates, and lost a lower tooth as a result of these procedures. She also required placement of a gastrostomy feeding tube to provide her with reasonable nutrition and hydration. Finally, on February 2, more than one month after the initial dental procedure, the patient was discharged to a nursing home for rehabilitation and pain control. She was ultimately discharged on March 6.

The Lawsuit

The patient commenced a lawsuit against the MLMIC-insured dentist, a general dentist, alleging an improperly performed and unnecessary maxillary sinus lift procedure, improper use of bone grafts from the mandible and failure to obtain informed consent. The patient claimed that her injuries from this procedure included a subsequent mandibular symphysis fracture which required hospitalization, and two open reduction and internal fixation procedures. Permanent damages included persistent jaw pain, numbness and paresthesia from her lower lip to her chin, over the entire width of her mouth. Additionally, she had limited mobility of her mouth, jaw, teeth and tongue, hypersensitivity to hot and cold and difficulty chewing and drooling.

The focus of the patient’s lawsuit was the “negligent and improper method” utilized by the dentist to harvest bone from the patient’s mandible and a lack of reasonable informed consent. Specifically, she alleged that the area used had insufficient bone integrity, claiming that by using multiple sites in close proximity, the integrity of her jaw was further compromised. She alleged that the dentist also failed to disclose the risk of a fractured jaw, which was associated with this type of surgery. Additionally, the patient alleged that the dentist failed to recommend more appropriate alternatives, which were less aggressive, such as allografts, rather than bone grafts.

Expert Reviews

Experts reviewing the case for the dentist opined that the patient’s mandible had sufficient integrity, that harvesting bone plugs would not predispose her to jaw fracture and that the type of fracture sustained by the patient was not an expected risk or complication of this surgery, a fact that would normally be disclosed during an informed consent discussion. Unfortunately, the defense was unable to identify an alternative theory for the jaw fracture, other than speculating that the patient had suffered external trauma (e.g. abuse). The experts further supported the dentist’s decision to graft the patient’s bone, stating that such an extensive graft could not be based solely on allograft material, since the dentist wished to increase the width of the entire maxillary ridge.

Despite the opinions of these experts, the defense of the dentist remained difficult and had major weaknesses. First, there was no documentation that the patient was having difficulty chewing, speaking or otherwise functioning with her existing dentures, apart from being unhappy with them. Thus, his extensive plan to rebuild her maxillary dental structure could easily be questioned. Further, his documentation of office visits and several post-operative entries appeared to be self-serving. The dentist’s record depicted the patient as healing and doing well with “no bruising” until the diagnosis of the jaw fracture. In direct contrast, the emergency room documentation clearly revealed continuous severe jaw pain, swelling and substantial bruising. Thus, his credibility was seriously undermined. Deposition testimony from the patient, her son and her daughter-in-law emphasized that her jaw pain had exponentially increased throughout the entire post-operative period. The dentist’s references to possible physical abuse of the patient were both unsubstantiated and vehemently denied by the patient and her family. Further, if the dentist truly believed the patient was being abused, he should have taken appropriate action, which he failed to do.

At the dentist’s deposition, it became clear he lacked the ability to carry out his original extensive and costly treatment plan. He was unable to explain why the patient had to fly to another state to have a bone graft from the patient’s hip. His initial claim that there were no orthopedic surgeons in the area capable of performing the type of bone harvest utilized in this procedure was questionable since he never contacted more than one orthopedist to discuss the procedure. He also admitted that he had not been trained to use only cadaver bone and, thus, he did not even consider this option.

Settlement

The most serious concern in defending the dentist was that a jury would perceive such an extensive and extremely costly plan for a 79-year-old patient in a very negative light. This would be especially true when there were much less invasive and less expensive, reasonable alternatives readily available. As a result of these serious weaknesses, a six-figure settlement was achieved on behalf of the dentist.

Takeaway

Effective communication is the cornerstone of the dentist-patient relationship. A patient’s perception of a dentist’s communication skills may impact the potential for allegations of malpractice. Utilizing the teach-back method when providing a patient with information regarding a procedure is imperative. Additionally, all aspects of the informed consent conversation must be documented in the dental record. Additional recommendations regarding effective communication with patients can be found here.

MLMIC policyholders can reach our healthcare attorneys for questions regarding documentation, informed consent or any other healthcare law inquiries by calling (800) 275-6564 Monday through Friday, 8 a.m. to 6 p.m., or by emailing here.

Our 24/7 hotline is also available for urgent matters after hours at (844) 667-5291 or by emailing hotline@tmglawny.com.

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This document is for general purposes only and should not be construed as medical 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, medical or professional obligations, the applicable state or federal laws or other professional questions.