Case Study and Legal Analysis: Adverse Treatment Leads to Settlement

May 2, 2022

This case study is by MLMIC’s Donnaline Richman, Esq., Marilyn Schatz, Esq., and Keith Vaverchak. It was originally printed in our First Quarter 2022 issue of The Scope: Dental Edition. Read more articles from the publication here.

A 59-year-old patient presented to the MLMIC-insured dentist with a history of heroin dependency and poor dentition. Over the course of five years of treatment, the dentist placed implants at teeth #7 and 9, mini-implants in the spaces of #4, 5, 12, 13, 14,

19, 20 and 21, and posts and cores in teeth #9 and 11. Crowns were prepped on #8, 9, 10 and 11. A root canal on tooth #28 was begun but never completed, and the tooth was eventually extracted. During the treatment period, each of the 10 implants failed.

Ultimately, all 10 implants and remaining teeth were removed by a subsequent treating dentist, and the patient needed full mouth reconstruction. In total, 19 teeth required extraction. The patient also required a bone graft and implants on 18 teeth. A treatment plan by the subsequent treating dentist included future damages in the amount of $89,500. The patient had an outstanding balance of almost $50,000 after paying $15,000 for the work performed.

A lawsuit was instituted in which the patient claimed she had difficulty eating and speaking, and suffered from pain, discomfort and embarrassment. There was no claim for lost earnings. She admitted at her deposition that she continues to take Suboxone and had been taking it for 10 years to treat her heroin dependency. She did not have dental insurance and paid $20,000 in cash to the insured dentist.

An expert review of the treatment provided by the MLMIC-insured dentist revealed nothing positive to assist in defending this case. Documentation in the records was poor, with missing pages and the records were commingled with those of the patient’s daughter. Billing records were confusing, as dates were missing or inaccurate. Several procedures were performed without obtaining written informed consent. Some consents that were obtained did not include authorization for treatment that was provided by the dentist.

The treatment plan that included the use of mini-implants to do a permanent full-mouth restoration was noted to be a deviation. The implants were poorly placed in questionable bone and were doomed to fail. The decision to restore the anterior teeth without posterior support is a deviation that caused excessive wear to the anterior teeth. The crowns fit poorly and were not seated on tooth structure.

Prescriptions given by our insured for controlled substances appear to be contraindicated for treatment that could not have caused pain. It was questionable as to whether the insured queried the New York State I-STOP registry prior to prescribing, which is a legal requirement. Although the preexisting condition of the patient’s mouth was poor, the films dated upon initial presentation indicated that the lower seven anterior teeth probably could have been saved and used to support a partial denture.

The lawsuit was clearly indefensible due to poor documentation, sloppy recordkeeping and numerous liability issues. MLMIC’s Claims Management team recognized that the value of this case would likely increase if the deposition of the insured was taken. The patient’s attorney was willing to negotiate prior to taking the testimony of our insured and demanded $350,000 to resolve the case. Through aggressive negotiations, MLMIC was successful in settling this case for $91,000.

A Legal and Risk Management Analysis

The numerous failings of the dentist in this case may seem farfetched, but the cumulative effect resulted in the ultimate decision to settle this lawsuit. Each individual risk management issue deserves the careful attention of all dental providers since they frequently contribute to the indefensibility of malpractice cases.

 The first and most obvious concern is the failure of the dentist to recognize that the patient had a history of heroin abuse and had been taking Suboxone for many years. A patient with such a history would likely have had very poor nutrition and dentition, which would have impacted the health of her teeth and gums. The question arises as to whether this patient required a higher level of dental care than the general dentist could have provided.

The most significant key to a good defense of a dental malpractice case is good documentation. In this case, not only were there scant entries in the patient’s paper records, but, in fact, numerous pages were missing or never existed. If the suit had gone to trial rather than being settled, the patient’s attorney could have requested a jury charge from the judge to imply that those pages were intentionally missing from the record.

There was little evidence of reasonable and adequate informed consent for each procedure performed on this patient. Lack of informed consent was a clear basis for this lawsuit, since the patient apparently was not advised in any detail about the risks and benefits of, and alternatives to, the treatment performed at each stage. In this particular and very complex situation, general consent to treatment is deemed to be extremely inadequate. Instead, a clear and well-written treatment plan accompanying the consent process was indicated and, unfortunately, lacking.

It is also noteworthy that prescribing controlled substances to a former heroin addict who was on Suboxone makes no sense from a dental or medical perspective. Apparently, the dentist did not check the New York State I-STOP registry before prescribing narcotics for the patient, which is in direct violation of NYS laws governing controlled substances.

Finally, the MLMIC claims department quickly realized that this dentist would not make a good witness at a deposition or trial. A serious attempt was made to settle the lawsuit due to the risk that a jury may have increased the projected value of the case beyond that which was anticipated. The claims staff was quite successful in this effort and resolved the suit for a reasonable amount without the dentist ever having to testify.

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