High-Severity Dental Liability Case Study: Oral Cancer

This case study was originally printed in our First Quarter 2023 issue of The Scope: Dental Edition. Read more articles from the publication here. For an overview of high-severity dental liability, read our recent blog.

A 47-year-old male, the insured dentist’s patient for five years, was seen for routine dental care in October 2011. The patient had been a smoker for many years but had quit about 10 years earlier. His medical history was unremarkable.

In August 2011, the patient had a sore on the inside of his cheek. His wife, a registered nurse, observed the sore and thought he may have thrush. At the end of that month, the patient’s primary care physician diagnosed the sore, which was present in the left buccal mucosa, as an aphthous ulcer, also known as a canker sore. He referred the patient to his regular dentist for further evaluation. The insured dentist attributed the lesion to the malposition of wisdom tooth #16 and recommended extraction.

Unfortunately, he wrote a very brief note and failed to mention the lesion at all.

Several weeks later, the patient returned for his last visit to this dentist with a fractured #13 tooth. He was referred to a periodontist for extraction, but he did not go. Once again, the dentist made no notation about the ulcer’s status.

Three weeks later, the patient emergently went to see another general dentist about tooth #13. This dentist also advised the patient to consult promptly with a periodontist for possible restoration or extraction. The patient declined to do so, and instead returned to this same general dentist for the extraction of tooth #13. Although this dentist noted that there was tissue ulceration distal to tooth #16, he described it in his record as a “traumatic lesion.” He did not consider the diagnosis of oral cancer because the lesion was clinically consistent with trauma. The dentist recommended the extraction of tooth #16, but the patient refused.

During the next visit, this dentist noted that the lesion appeared more diffuse and irritated. He again recommended tooth #16’s extraction. The patient initially consented to the extraction but then changed his mind and revoked his consent.

The following month, the dentist noted that the lesion had increased in size, was becoming a mixture of red and white tissue and was visually concerning. Two days later, the patient consented to the extraction of tooth #16. However, after the extraction, he continued to experience discomfort on the left side of his mouth, and he returned to this dentist. By now, the lesion involved the oropharynx, which the dentist documented. Because the extraction failed to resolve the lesion, the dentist considered it suspicious, performed a brush biopsy and took multiple photographs of the lesion. The biopsy results showed “atypical cells, a portion of which were found to be at least dysplastic.”

Shortly thereafter, the patient presented to an oral surgeon for a “pathology consultation.” Unfortunately, the oral surgeon did not consider an oral cancer diagnosis because he did not believe the lesion’s clinical appearance was suspicious for cancer. He later testified that he saw “no signs of cancer at this point.” This was five months after the patient’s last office visit to the original dentist. Instead, the oral surgeon diagnosed a slow-healing extraction socket and intended to do a biopsy of that area if it did not heal in two weeks. The biopsy was never performed, and, at his deposition, he had difficulty explaining this lapse.

Seven months after the patient’s last office visit, the oral surgeon referred the patient to a head and neck surgeon for a fine needle biopsy. The results of this biopsy confirmed the diagnosis of stage IV squamous cell carcinoma. Subsequently, the patient underwent a radical left composite resection involving the removal of the bone, muscle and soft tissue in the area. He was left with a significant cosmetic deformity and subsequent postoperative complications. Unfortunately, the cancer recurred and metastasized, and the patient expired five months later.

A lawsuit was brought by the patient’s wife against the original insured dentist, the subsequent treating dentist and the oral surgeon.

Inside and outside reviews by dental experts noted the atypical presentation of the disease. However, the original insured dentist failed to document any warnings to the patient that the irritation could be cancerous.

All the experts were critical of the subsequent treating providers. For instance, the dentist observed that the lesion was expanding but did nothing at a time when the patient might have had a better prognosis. Unfortunately, by the time the oral surgeon became involved, it was too late.

The reviewers were also extremely critical of the lack of documentation by the original dentist with respect to the patient’s complaints and his findings. The Dental Claims Committee felt that, although the subsequent providers’ treatment had serious problems, the original dentist did nothing wrong and unanimously voted to defend him. However, the plaintiff’s counsel told the defense counsel that he planned to pursue the insured dentist’s personal assets if the case proceeded to trial and ended in a plaintiff’s verdict beyond the dentist’s policy limits. The dentist had recently retired and was very concerned about the possibility of such personal exposure.

The case was then mediated. MLMIC was successful in settling this lawsuit on the insured’s behalf. The oral surgeon settled the case as well. However, the subsequent treating dentist did not contribute at all to the settlement and received a stipulation of discontinuance prior to the trial.

A Legal and Risk Management Analysis

This patient did not appear to question the involved dentists about the need to perform procedures. His communication with the dentists is unclear. The patient was also noncompliant because he kept changing his mind about undergoing recommended procedures and one extraction that may have led to an earlier oral cancer diagnosis. It is uncertain whether he fully understood why the recommendations were made by the two dentists he visited, resulting in an overdue definitive treatment for oral cancer. These delays were clearly to his detriment and, unfortunately, led to his death.

The patient’s dental record lacked the disclosure of important findings. It is difficult to determine whether this was just a noncompliant patient or whether he did not communicate with the first dentist. Unfortunately, even when the patient was referred to and ultimately was seen by an oral surgeon, there was a lack of any communication by this surgeon about oral cancer.

The patient’s obvious confidence in the skills of his regular dentists led to the delay in obtaining a timely diagnosis. Progress notes in the dental records did not include any findings and did not reflect the dentists’ recommendations. The failure to document communication with patients significantly contributes to the indefensibility of malpractice lawsuits. Therefore, it is crucial for a dentist to incorporate into the dental record all conversations with a patient in which the dentist discloses suspicion of a serious condition. Any finding of a potentially significant ailment, such as oral cancer, requires immediate referral to a specialist.

MLMIC policyholders can reach our risk management attorneys for questions regarding documentation 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.

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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.