Failure to Diagnose Bruxism: A Patient’s Secret Recordings Absolves the Dentist

Facts of the Case

A 37-year-old male had been seen by his general dentist since 1987. He had various fillings placed over the course of several years, with crowns being cemented on #s 7, 8, 9 and 10. For three years, the patient was treated with routine prophylaxis and amalgam fillings. By 1991, the dentist had restored eight lower teeth, #s 21-28. He documented that this treatment was needed because of wear.

From 1991 on, the patient was again treated with routine prophylaxis and fillings. In 1998, the patient relocated out of state. He asked that his records be forwarded to his new dentist. He was seen twice in 1998 by this new dentist but then transferred to a second dentist in that state. On Oct. 19, 1998, the patient and his second dentist discussed the patient’s wish to replace his upper anterior crowns. This dentist documented that the patient wanted “lighter crowns.” Instead, the dentist suggested a full mouth restoration at an estimated cost of $19,000. Additionally, the dentist advised that if he performed a full mouth restoration, the patient had to wear an occlusal guard at night.

The patient advised that he wanted to wait to decide whether to undergo a full mouth restoration. In Dec. 1998, the patient’s lower anterior teeth #s 22-27 were built up with composite resin, establishing anterior occlusion to allow his posterior teeth to further erupt. In Jan. 1999, the patient underwent crown replacement on teeth #s 7-10. In July 1999, the patient advised the dentist he was dissatisfied with his treatment and refused to pay his bill.
In Sept. 1999, the patient returned to New York State and resumed treatment with his original dentist. Prophylaxis was performed, but he refused to have x-rays. An impression was also taken for a night guard.

For the next five years, he received only routine dental care. However, in Feb. 2004, the patient advised the dentist that he was concerned with his occlusal wear. He was promptly referred to an orthodontist. The orthodontist called the dentist and stated that he could not help the patient because he really needed a full mouth restoration. In April 2004, the patient was advised that only a full mouth restoration would resolve all his dental problems. The patient again refused to comply with this recommendation.

Over the next five years, the patient was seen only for routine dental care and continued to refuse all x-rays during this period. All refusals were documented. The patient’s final appointment was in January 2009. He then moved to another city where a full mouth restoration was completed.

The Lawsuit

In 2012, the patient sued his original dentist, alleging his failure to diagnose bruxism and seeking damages for the resulting pain and suffering and dental costs. MLMIC’s experts who reviewed this case were concerned that there were difficult issues to overcome. The first was the dentist’s lack of documentation. His office notes from the early 1990s were very sparse, particularly for the initial dates of treatment. Unfortunately, the patient’s early x-rays had also been destroyed due to weather-related damage to the dentist’s office building.

Further, this dentist had never taken a full mouth series. It was not until after the dentist reviewed the full mouth series taken by the out-of-state dentist that he finally documented the need for a full mouth reconstruction. Although he was certain that he discussed the need for full mouth restoration earlier in the patient’s treatment, his records did not reflect such a discussion. The experts felt this lack of documentation would seriously affect the defensibility of the lawsuit.

At his pretrial deposition, the patient was vague and non-specific. He claimed he was never told that his bruxism would result in the need for a full mouth restoration and denied that such a conversation took place in 2009. In fact, he claimed he was not told that he had bruxism until he moved out of state. Finally, he claimed the dentist advised him to use a soft teeth bleaching tray instead of a mouthguard at night.

During his depositions, the patient revealed that he had secretly recorded two of his office visits with this dentist as well as visits to subsequent treating dentists. Fortunately, nothing in these secret recordings supported the patient’s contentions. In fact, they demonstrated the patience and thoughtfulness with which the dentist had answered the patient’s questions. While the dentist admitted that he did not fully document the patient’s bruxism, he stated definitively that he did warn the patient about this and the need to wear a mouthguard at night. While the patient thought the recordings hurt the dentist, in fact they had the opposite effect.

When the dentist testified at trial, the patient’s attorney not only permitted him to expand on his answers but allowed him to explain his thought process when treating the patient. In anticipation of the testimony of the patient’s expert, the dentist stated that, based on the occasional x-rays permitted by the patient, he diagnosed bruxism and recommended that he use a night guard. Despite the lack of documentation prior to 1999, the dentist testified that the films demonstrated a huge amount of wear. He testified that he could not have failed to have seen it, nor could he have failed to recommend a night guard and full mouth restoration.

When the patient testified, he could not remember key facts, nor could he recall the care provided by other dentists. He further testified that he declined x-rays several times because he was afraid of radiation. However, on cross-examination by defense counsel, he admitted that he had declined x-rays due to cost. This fact was confirmed by the secret recordings, where he never mentioned any concerns about radiation fears.

He also admitted that he declined the dentist’s recommendation to place a crown on #11 for several years. That tooth eventually fractured at the gum line. He finally admitted that he had declined the recommendation of this dentist, as well as that of the two out-of-state dentists and his subsequent treating dentists, to wear a night guard, even following a full mouth restoration.

The patient’s expert was a periodontist. His testimony was based upon his assumption that the dentist had never told the patient he had bruxism nor recommended a night guard. He opined that this was a deviation from the standard of care. He further testified that the dentist’s documentation was substandard.

The defense expert, in contrast, testified that there was no question that the dentist had diagnosed bruxism from the very beginning of the treatment provided to the patient, as evidenced by the fact that he placed four upper crowns over the very badly worn four upper front teeth. He also had used porcelain fused to gold crowns to intentionally aim at reducing the wear on the lower teeth. Further, he had performed numerous restorations specifically because of wear from bruxism. He testified that recommending a night guard would go hand in hand with making this diagnosis. Finally, he pointed out the patient’s continuous failure to comply with treatment recommendations, as documented by multiple providers. After a brief deliberation, the jury returned a verdict in favor of the dentist.

Takeaways

It is difficult to defend a lawsuit when the dentist has failed to document patient noncompliance. In many instances, as here, the care is provided over an extended period of time, and without contemporaneous documentation, verbal recollections of such care are suspect for lack of veracity. Good documentation of noncompliance, particularly a pattern of refusal or inaction, and documented follow-up with the patient shifts the burden of proof to the patient. Here, the patient’s noncompliance included his failure to wear a mouthguard after several dentists had told him to do so, his refusal to permit x-rays for many years and his failure to timely undergo a full mouth restoration despite being advised by two dentists to do so. Because there was no documentation of discussions with the patient regarding his failure to adhere to recommendations to prevent damage from bruxism, the patient was able to assert claims in his lawsuit and at trial that he otherwise would not have been able to state.

In this case, the patient had surreptitiously recorded conversations not only with this dentist but with two other dentists. Fortunately, the recordings undermined rather than supported his contentions, including the statement that he had refused x-rays on multiple occasions solely due to a fear of radiation. The recordings contained an admission that the patient refused x-rays solely due to cost. They also showed the dentist to be kind, thoughtful and willing to answer the patient’s questions.

Providers often question whether patients can legally record their discussions without their consent. This is a risk, given the widespread use of cell phones. Some record secretly, while others do it openly. In New York State , only one of the two participants to a conversation must consent to be recorded. Thus, you should always recognize the possibility your conversation is being recorded and discuss treatment and/or the patient’s condition in a caring, thoughtful and open manner.

Patients frequently use the excuse that they cannot recall or fully understand treatment conversations as the rationale for recording. Therefore, we recommend that the patient always be asked to repeat their understanding of these conversations and that the response be documented. To accommodate patients with low medical literacy levels, all communication must be simple and in plain English. Finally, we recommend that the patient be asked if they have any remaining questions before the conversation concludes.

Another issue in this case was the inadvertent destruction of potentially relevant evidence by a weather-related event. New York State regulations require the retention of records of adults for 6 years and minors for at least 6 years and until one year after the minor is 21 years old. When records are or appear to be destroyed, an explanation is required. A dentist is obligated to document what was lost and why and make reasonable attempts to salvage the records. This is particularly true if the records are paper and have been subjected to water damage.

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Sources:

1. N.Y. Penal Law 250 and 250.05.
2. 8 NYCRR 29.2(a)(3).

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.