Undiagnosed Oral Cancer and a Faulty EDR System

Reprinted from The Scope:  Dental Edition, Issue 16 (Second Quarter 2024)

By Kristen Guarente, Claims Specialist II, Donnaline Richman, an attorney with the MLMIC Legal Department and Marilyn Schatz, an attorney with the MLMIC Legal Department

In this case, a 36-year-old patient alleged that a dentist and his professional corporation failed to diagnose and treat a lesion on the side of the tongue resulting in a delayed diagnosis of oral cancer.

Treatment and Diagnosis 

A 36-year-old patient was treated by the dentist, who was an employee at a MLMIC-insured facility, for routine examinations. The patient’s history included bone cancer as a child. During an examination, the dentist noted a deep lesion on the side of the patient’s tongue that appeared irritated. The patient reported that the lesion had been there for years and was painful when consuming acidic food or beverages. Photographs were taken of the lesion, and the patient was instructed to return in six months for further examination.

When the patient returned six months later for his scheduled appointment, the dentist noted the lesion had changed, and he recommended a biopsy. A referral was made to an oral surgeon, who biopsied the lesion. Pathology confirmed that the lesion was Stage II moderately-well defined differentiated squamous cell carcinoma.

The patient underwent a soft tissue neck CT and flexible laryngoscopy that revealed findings of no obvious lesions. A partial glossectomy and neck dissection were then performed, and a 3 cm ulcerative lesion was removed from the tongue. The patient underwent an eight-week course of radiation which caused significant burns, oral sores and painful muscle spasms in the neck. He sustained tongue disfigurement, a speech impediment requiring extensive speech therapy and head, neck and throat pain. He responded well to treatment and is currently in remission. 

Lawsuit Filed 

The patient commenced a lawsuit against the employed dentist and the professional corporation alleging failure to diagnose and treat a lesion on the side of the tongue resulting in a delayed diagnosis of oral cancer. The plaintiff claimed that the dentist failed to properly measure, photograph and document the lesion; obtain a biopsy of the lesion and properly advise the patient of the lesion. Additional allegations pertained to the professional corporation for failure to preserve the photographs. 

Although photographs of the lesion were taken, unfortunately, they were not successfully saved in the electronic dental record (EDR). The dentist testified at his deposition that the photographs should have been automatically uploaded to the patient’s dental record, but he could not explain why they no longer exist. 

The patient testified at his deposition that the dentist’s only recommendation was to monitor the condition. He recalled that the dentist merely discussed the lesion with him and examined and palpated the area.

Expert Reviews and Settlement 

MLMIC’s expert reviewers opined that the absence of photographs of the lesion severely compromised any possible defense in this case. Without a photograph or a description of the lesion in the dental record, they could not comment on the accuracy of the dentist’s recommendation for the patient to return in six months. 

Failure to retain the photographs rested entirely on the practice, as the dentist was an employee. However, the dentist should have brought the patient back sooner for closer follow-up, rather than asking him to return in six months for his next appointment. In addition, billing records reflected multiple charges to this patient for services that were not rendered by the dentist. The plaintiff’s attorney issued a demand in the amount of $3,000,000. The case ultimately settled on behalf of the dentist and the professional corporation in an equal apportionment for a total amount of $1,750,000. 

A Legal and Risk Management Analysis 

Although the dentist is to be commended for diagnosing and being suspicious about a lesion, he failed to follow through with an approach that could have saved the patient from more invasive disease had the matter been addressed in a timelier fashion. The dentist was remiss by failing to take a more aggressive approach when he initially saw the lesion. A follow-up appointment six months later is an inordinate length of time to schedule a subsequent evaluation. Any suspicious lesions should be followed up much sooner and more frequently, or patients should immediately be referred to an oral surgeon for an assessment. 

It is strongly recommended to always take and maintain a clinical picture of oral lesions for proper documentation. It is quite possible that, had the photographs been appropriately stored in the patient’s record, it would have revealed a lesion that was smaller and more manageable than it ultimately was so many months down the road. This would have provided concrete proof that the dentist deprived the patient of an opportunity to address this finding before it became more serious. In a way, it was fortuitous for the dentist that the photographs were mishandled because the professional corporation was dragged into the suit, which afforded the dentist a partner in making the ultimate settlement payout. It is the patient, however, who suffered the most due to the misguided management of his care by the dentist. 

It is imperative to involve patients in their own care by providing a description of, and documenting, possible signs, and any further symptoms for them to be on the lookout for, and to contact the dentist immediately should symptoms become worse or more serious. However, the burden in this case rested exclusively on the dentist, who brushed the potential gravity of this lesion aside by asking the patient to wait six months before returning for further evaluation or seeking the opinion of a specialist. 

As this case exemplifies, it is strongly discouraged to leave a lesion undiagnosed, even if it looks benign. Proper and timely referrals to specialists are always indicated to correctly guide patients for a definitive diagnosis and suitable treatment. Dentists do and should play an active role in the early diagnosis, monitoring, and management of oral lesions. Rather than taking a dismissive approach, any identification of lesions must always be taken seriously.

MLMIC policyholders can obtain recommendations regarding documentation and communicating with patients by emailing a question to dental@mlmic.com.

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.